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Indian Laws - Case Laws
Showing 201 to 220 of 27622 Records
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2025 (1) TMI 984
Dishonor of Cheque - Cognizance for offence under Sections 420, 467, 468, 471 and 120-B of IPC - case of applicant is that the complaint filed by the respondent is misconceived and the Magistrate should not have taken up the cognizance - complaint in question was filed by way of counter blast and the complaint suffers from malafide - presumption under Section 139 of Negotiable Instruments Act - Whether the prosecution can be quashed on the ground of delay or not?
Presumption u/s 139 of NI Act - HELD THAT:- There is a presumption that whenever a cheque is issued, then it must have been issued in discharge of legal liability. However, that presumption is rebuttable. It is the case of the complainant that a post dated cheque of 25.12.2013 was issued by way of security. However, this date i.e., 25.12.2013 was interpolated by the applicant and 25.12.2013 was made as 25.02.2013 and the cheque was presented. If the postdated cheque dated 25.12.2013 was issued, then even in the light of Section 139 of Negotiable Instruments Act, at the best, it can be said that legal liability to pay the cheque amount was on 25.12.2013 and on 25.02.2013, no legal liability had accrued - even in the light of Section 139 of Negotiable Instruments Act, if the allegations made in the complaint are considered, then it is clear that the presumption as available under Section 139 of Negotiable Instruments Act would not come to the rescue of the applicant - contention of the applicant that the complaint filed by the respondent is bad in the light of Section 139 of Negotiable Instruments Act is misconceived and hereby rejected.
Whether the complaint was filed by the way of counter blast, malafide and is belated or not? - HELD THAT:- The Supreme Court in the case of Renu Kumari vs. Sanjay Kumar [2008 (3) TMI 768 - SUPREME COURT]] has held that if the allegations make out a cognizable offence, then malafides of the complainant would become immaterial.
Whether the prosecution can be quashed on the ground of delay or not? - HELD THAT:- Mere delay in lodging the complaint or FIR cannot be a ground to quash the proceedings unless and until the proceedings/FIR is barred under Section 468 of Cr.P.C. It is not the case of the applicant that complaint is barred under Section 468 of Cr.P.C. Thus, mere delay, if any, in filing the complaint cannot be a ground to quash the proceedings.
Conclusion - i) The contention of the applicant that the complaint filed by the respondent is bad in the light of Section 139 of Negotiable Instruments Act is misconceived and hereby rejected. ii) If the allegations make out a cognizable offence, then malafides of the complainant would become immaterial. iii) Mere delay, if any, in filing the complaint cannot be a ground to quash the proceedings.
This Court is of considered opinion that no case is made out warranting interference - Application dismissed.
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2025 (1) TMI 929
Maintainability of appeal filed under Section 19 of the Contempt of Courts Act, 1971 - appellant submitted that the impugned order has been passed by the learned Single Judge without taking into consideration the entirety of the matter - violation of principles of natural justice - HELD THAT:- In order to understand the settled position of law regarding the appeals against the orders in contempt proceedings, it is pertinent for this Court to understand the interpretation of Section 19 of the Act. Therefore, it is apposite to mention the case of MIDNAPORE PEOPLES' CO-OP. BANK LTD. & ORS. VERSUS CHUNILAL NANDA & ORS. [2006 (5) TMI 537 - SUPREME COURT] wherein the Hon’ble Supreme Court has categorically observed that the appeal under Section 19 of the Act is maintainable only against an order in which punishment has been awarded to the contemnor.
In view of the above case, the position of law pertaining to Section 19 of the Act is that the appeal against the orders passed in the contempt proceedings cannot be maintainable if such an order is devoid of any punishment or guilt imposed upon the contemnor. Therefore, in the instant case, the instant appeal under the said provision is maintainable before this Court only if the impugned order awarded punishment or held the appellant guilty of the contempt proceedings.
Taking into consideration the contents of Section 19 of the Act as well as the case-laws mentioned hereinabove, this Court is of the considered view that an appeal under Section 19 of the Act, challenging the order passed in the contempt proceedings, is maintainable only when such an order records or imposes any punishment or guilt of the contemnor. However, upon perusal of the impugned order, it is clear that the learned Single Judge has merely directed the appellant to release the amount already deposited along with the interest accrued thereupon @ 6% p.a. till date while making concession towards the statutorily prescribed grace period of 120 days in favour of the respondent and therefore, the same cannot be construed to be punitive in nature.
Conclusion - An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
Appeal dismissed.
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2025 (1) TMI 928
Seeking action in respect of alleged unauthorised construction by respondent No. 3 - HELD THAT:- The rights and contentions of the owners/occupants of the subject property are expressly reserved. MCD is directed to take action strictly in accordance with law, and after complying with all statutory formalities and bearing in mind the Supreme Court judgment in IN RE: DIRECTIONS IN THE MATTER OF DEMOLITION OF STRUCTURES [2024 (11) TMI 1414 - SUPREME COURT].
The court disposed of the petition, reserving the rights and contentions of the property owners/occupants. MCD is instructed to act according to law and comply with all statutory formalities, referencing the Supreme Court judgment dated 13.11.2024 regarding demolition of structures.
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2025 (1) TMI 927
Permissibility of restitution u/s 144 of the Code of Civil Procedure (CPC) when a sale deed is executed pursuant to an ex parte decree that has been subsequently set aside - HELD THAT:- Admittedly, the sale deed has been executed pursuant to the exparte decree passed in the suit filed for specific performance of the contract said to have been executed in the year 2004. Now the said exparte decree has been set aside in I.A.No.102 of 2016 and delay has also been condoned. It is to be noted that the above Orders have not been challenged. Now it is stated by the learned Senior Counsel appearing for the petitioner that they have filed SLP. However, no number has been assigned. Be that as it may.
Further, the contention of the learned Senior Counsel that the restitution cannot be applied cannot be countenanced. Even assuming that the provision under section 144 of Code of Civil Procedure is not strictly applicable to the facts of the present case, that will not deter the trial Court to exercise its jurisdiction which is inherent in it and arrest the prejudice caused to the parties at the act of the Court. It is to be noted that only on the basis of the sale executed by the Court, the revision petitioner claim title. If the said sale deed is allowed to be on record and used for any other purpose, it would certainly cause prejudice to the respondents . Therefore, trial Court by its inherent jurisdiction has set right the mistake and restored the status quo ante which will not cause prejudice to either party. Therefore, the trial Court has rightly exercised its jurisdiction which is inherent in it to prevent prejudice. In such view of the matter, there are no merits in the revision petition.
Conclusion - The trial Court by its inherent jurisdiction has set right the mistake and restored the status quo ante which will not cause prejudice to either party.
This Civil Revision Petition is dismissed.
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2025 (1) TMI 783
Power of Bombay High Court to condone the delay in filing appeals beyond the period stipulated under Section 74(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - interpretation of Section 74 of the 2013 Act - express exclusion to the applicability of Section 5 of the Limitation Act, 1963 - HELD THAT:- As per the provisions of Section 29(2) of the Indian Limitation Act, 1908 if there was any delay in filing an appeal under a special or local law, one could not take the aid of Section 5 to condone the delay. Under the Limitation Act, 1963, there is a complete departure from this position. Under the Limitation Act, 1963, where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the Schedule of said Act, for the purposes of determining any period of limitation for any suit, appeal or application prescribed by such special or local law, the provisions contained in Sections 4 to 24 shall apply, unless and to the extent they are expressly excluded by the language of such special or local law. In other words, Section 5 of the Limitation Act, 1963 would apply [unlike under Section 29(2)(b) of the Indian Limitation Act, 1908], unless expressly excluded by the language of the concerned special or local law.
The question that remains is whether in the language used in Section 74 of the 2013 Act there is an express exclusion to the applicability of Section 5 of the Limitation Act, 1963. On perusing the provisions of Section 74, it is clear that when the said section is read as a whole, the inescapable conclusion is that Section 5 of the Limitation Act, 1963 cannot be invoked for condoning the delay beyond the total period of 120 days as stipulated in Section 74(1) read with its proviso. If the legislature had in fact intended that Section 5 of the Limitation Act, 1963 would apply to an appeal to be filed under Section 74(1) of the 2013 Act, the legislature would not have inserted the proviso to Section 74(1) which [after the initial period of sixty days to file an appeal under Section 74(1)], gives power to the High Court to condone the delay for a further period not exceeding sixty days.
The proviso to Section 74(1) specifically stipulates that the High Court shall have the power to condone the delay, after the initial period of sixty days, for a further period not exceeding sixty days. This would most definitely amount to an express exclusion to the applicability of Section 5 of the Limitation Act, 1963, to an appeal to be filed under Section 74(1) of the 2013 Act. To hold that the High Court can entertain an appeal even beyond the extended period [as stipulated in the proviso to Section 74(1)] would render the words “not exceeding sixty days” wholly otiose.
On reading the proviso to Section 74(1) of the 2013 Act, and which is not only almost identical to the provisions of 125 of the Electricity Act, 2003, but also similar to the provisions of Section 421(3) of the Companies Act, 2013, the inescapable conclusion is that the proviso to Section 74 (1) expressly excludes the applicability of Section 5 of the Limitation Act, 1963. Once this is the case, there are no power to condone the delay beyond the maximum period of 120 days as stipulated in Section 74(1) read with its proviso, by resorting to the provisions of Section 5 of the Limitation Act, 1963.
Conclusion - There are no hesitation in holding that beyond the total period of 120 days as stipulated in Section 74(1) [read with its proviso] of the 2013 Act, this Court has no power to condone the delay. Since, admittedly in the facts of the present case, both the applications [seeking condonation of delay] filed by the Appellant are beyond the total period of 120 days.
Both the applications seeking a condonation of delay are hereby dismissed.
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2025 (1) TMI 782
Dishonour of Cheque - whether condition imposed by the Sessions Judge, requiring the applicant to deposit 20% of the fine amount under Section 148 of the Negotiable Instruments (NI) Act, is justified? - HELD THAT:- Having gone through the provision of Section 148 of the N.I. Act and after taking into consideration the observations recorded by the Hon’ble Supreme Court in ASHOK KUMAR VERSUS STATE OF UTTARAKHAND & ANR. [2023 (11) TMI 1338 - SC ORDER], this Court is of the considered view that in normal circumstances, the Appellate Court may be justified in imposing the condition of deposit, as provided in Section 148 of the N.I. Act, and only in those cases, where imposing the condition of deposit is unjust or which may deprive the accused/appellant to pursue his appeal, an exception can be drawn by deviating from the normal procedure.
In such view of the matter, this Court is of the firm opinion that the Case Law relied upon by learned counsel for the applicant in the case of Ashok Kumar is not applicable in the facts and circumstances of the present case.
Conclusion - The Court finds that no special circumstance exists in the present case, and the condition of deposit of 20% compensation will neither be unjust nor it will amount to deprivation of the right of appeal to the applicant.
Application dismissed.
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2025 (1) TMI 729
Dishonour of Cheque - challenge to conviction and sentence - compromise reached between the parties - invocation of inherent powers of the High Court to compound the offence under Section 138 of the Negotiable Instruments Act at the revisional stage - HELD THAT:- It is well settled that inherent power of the Court can be exercised only when no other remedy is available to the litigants and nor a specific remedy as provided by the statute. It is also well settled that if an effective, alternative remedy is available, the High Court will not exercise its inherent power, especially when the Revision Petitioner may not have availed of that remedy - This Court can always take note of any miscarriage of justice and prevent the same by exercising its power. These powers are neither limited, nor curtailed by any other provision of the Code or Act. However, such inherent powers are to be exercised sparingly and with caution.
In the instant case, it is true that the appeal was dismissed and the conviction and sentence was upheld by the appellate court, but it cannot be lost sight of the fact that this Court has power to intervene in exercise of its power only with a view to do the substantial justice or to avoid a miscarriage and the spirit of compromise arrived at between the parties. This is perfectly justified and legal too.
In the instant case, the Revision Petitioner is invoking the inherent power of this court after dismissal of the appeal confirming his conviction and sentence - In the case of Krishan Vs. Krishnaveni [1997 (1) TMI 529 - SUPREME COURT], Hon'ble the Apex Court has held that though the inherent power of the High Court is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the applicant is shown to have already invoked the revisional jurisdiction under section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may in its discretion prevent the abuse of process or miscarriage of justice by exercising its power.
Section 147 of NI Act begins with a non obstante clause and such clause is being used in a provision to communicate that the provision shall prevail despite anything to the contrary in any other or different legal provisions. So, in light of the compass provided, a dispute in the nature of complaint under section 138 of N.I. Act, can be settled by way of compromise irrespective of any other legislation including Cr.P.C. In general and section 320 (1)(2) or (6) of the Cr.P.C. in particular - Merely because the litigation has reached to a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that at revisional stage, the nature of offence punishable under Section 138 of the N.I. Act should be treated as if the same is falling under table-II of Section 320 IPC.
The court is inclined to hold accordingly only because there is no formal embargo in section 147 of the N.I. Act. This principle would not help any convict in any other law where other applicable independent provisions are existing as the offence punishable under section 138 of the N.I. Act is distinctly different from the normal offences made punishable under Chapter XVII of IPC (i.e. the offences qua property).
Conclusion - The conviction and sentence under Section 138 of the Negotiable Instruments Act could be annulled based on the compromise reached between the parties. The inherent powers of the court were appropriately invoked to secure the ends of justice.
The conviction and sentence under section 138 of the Negotiable Instruments Act in C.C.No.366 of 2013 stands annulled as this Court intends, otherwise to secure the ends of justice - the present Criminal Revision Case is disposed of.
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2025 (1) TMI 623
Applicability of Limitation Act to proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 (ACA) - Whether the benefit of the additional 30 days under the proviso to Section 34(3), which expired during the vacation, can be given when the petition is filed immediately after reopening in exercise of power under Section 4 of the Limitation Act?
Do the provisions of the Limitation Act apply to Section 34 proceedings, and to what extent? - HELD THAT:- When Section 29(2) of the Limitation Act already makes Sections 4 to 24 of the Limitation Act applicable to special statutes, including the ACA. It held that the ACA does not prescribe the period of limitation for various proceedings under the Act, and deviates from the Limitation Act in specific instances like Section 34(3) and Sections 43(2) to (4).16 By virtue of Section 29(2), the Limitation Act applies to court proceedings under the ACA. The purpose of Section 43(1) of the ACA is to extend the applicability of the Limitation Act to arbitrations also, as these are private tribunals and not courts. Since the Limitation Act is only applicable to court proceedings, Section 43(1) is necessary to make it applicable to arbitrations in the same manner as it applies to court proceedings.
The mere prescription of a period of limitation that is different from the Limitation Act, even if mandatory and compulsory, is not sufficient to displace the applicability of the Limitation Act’s provisions.20 However, an exclusion of the Limitation Act’s provisions can be inferred if the nature and language of the provisions, and the scheme of the special law necessarily exclude the applicability of one or more of the provisions contained in Sections 4 to 24 of the Limitation Act.21 Thus, as per settled caselaw, an express reference to an exclusion is not essential and the court can examine the language of the special law and its scheme to arrive at a conclusion that certain provisions of the Limitation Act are impliedly excluded.
Once the Court commenced disapplying provisions of the Limitation Act to the ACA on the ground of implied exclusions, it is only a matter of interpretation to include or exclude provisions from Sections 4 to 24 of the Limitation Act on a case-to-case basis. Thus, for example, while the Court held that Sections 5 and 17 of the Limitation Act are excluded from Section 34(3), it came to the conclusion that Sections 4, 12, and 14 of the Limitation Act are applicable. In a way, the applicability of provisions from Sections 4 to 24 of the Limitation Act and the manner in which they apply are at the doorstep of the court, rather than being determined by a clear and categorical statutory prescription.
Conclusion - The Limitation Act applies to Section 34 proceedings, with specific exclusions. Section 4 applies only to the 3-month period, and Section 10 of the GCA does not apply.
Appeal dismissed.
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2025 (1) TMI 622
Jurisdiction of the Facilitation Council in entertaining the reference under Section 18 of the MSMED Act, 2006 - challenge to jurisdiction for the simple reason that it registered itself after the contracts were executed and not before - whether an MSME (Micro, Small, and Medium Enterprise) can make a reference to the Facilitation Council for dispute resolution under Section 18 of the MSMED Act, 2006, if it is not registered under Section 8 of the Act before the execution of the contract with the buyer?
HELD THAT:- Having considered the definition of the expression ‘supplier’, and also having considered the classification of enterprises into micro, small and medium with respect to each of which there is a separate legal regime to be suggested by the Advisory Committee and notified by the Central and State Governments, and in view of the discretion specifically vested with the micro and small enterprises for filing a memorandum under Section 8 of the Act, the submission that the Facilitation Council cannot entertain a reference under Section 18 if the enterprise is not registered under Section 8 must be rejected.
Re: Silpi Industries v. Kerala State Road Transport Corporation [2021 (6) TMI 1119 - SUPREME COURT] - This is the lead judgment which has given the impression that this Court has laid down the law that Section 18 cannot be invoked by an Enterprise if it has not filed a memorandum under Section 8 of the Act before entering into a contract. However, the issues that arose for consideration in Silpi Industries are in complete contrast with the present case. In that case, there were two appeals, and they involved different facts and circumstances. The short facts in the first appeal was that the appellants referred the matter to the Facilitation Council which made an award in favour of the appellant under the Arbitration and Conciliation Act. The award was challenged under Section 34 and the same was dismissed. During the pendency of the appeal under Section 37, the High Court decided a preliminary issue as to whether the Limitation Act would apply to arbitral proceedings under the MSME.
In the first place, whether an Enterprise is disabled from seeking a reference before filing a memorandum under Section 8 for registration never arose for consideration in Silpi. More importantly, the Court did not examine any provisions of the Act and their implication on the right to seek a reference under Section 18 of the Act. This was natural because the Court did not frame an issue of registration.
Even in Mahakali Foods [2022 (11) TMI 91 - SUPREME COURT], the issue which has arisen for our consideration never arose. There was neither an issue, discussion, nor analysis on the applicability of Section 18 for enterprises that have not filed a memorandum. The decision in Mahakali Foods is certainly an authority on the issues that were formulated in paragraph 11 of the said judgment, which have already been extracted hereinabove. Even the concluding paragraph in Mahakali Foods clearly establishes the fact that the Court was only considering the issue of whether the MSMED Act, being a special legislation, overrides the Arbitration Act or not.
On the interpretation of the provisions of the Act we have arrived at a clear opinion and have expressed the same. Though it is possible for us to follow the precedents referred to in para 27 to arrive at the conclusion that the judgments in the case of Silpi Industries and Mahakali Foods coupled with the subsequent orders in Vaishno Enterprises [2022 (4) TMI 58 - SUPREME COURT] cannot be considered to be binding precedents on the issue that has arisen for consideration, taking into account the compelling need to ensure clarity and certainty about the applicable precedents on the subject, it is deemed appropriate to refer this appeal to a three Judge Bench.
Conclusion - i) An MSME can refer a dispute to the Facilitation Council under Section 18 without being registered under Section 8 before the execution of the contract. ii) The Court referred the matter to a larger bench for a definitive ruling to ensure clarity on the issue.
The Registry is directed to place the appeal paperbooks along with our detailed judgment before the Hon’ble Chief Justice of India for constitution of an appropriate Bench.
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2025 (1) TMI 621
Dishonour of Cheque - complaint barred by time limitation or not - condonation of delay in filing appeal - funds insufficient - challenge to judgment of acquittal.
Challenge to judgment of acquittal - HELD THAT:- It was laid down by the Hon’ble Supreme Court in Mallappa v. State of Karnataka [2024 (2) TMI 1391 - SUPREME COURT] that while deciding an appeal against acquittal, the High Court should see whether the evidence was properly appreciated on record or not; second whether the finding of the Court is illegal or affected by the error of law or fact and thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will not lightly interfere with the judgment of acquittal.
The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court.
Appeal barred by time limitation - condonation of delay - HELD THAT:- It was permissible for the complainant to present the complaint himself before the Court as per Section 200 of Cr.P.C., and he did not require the assistance of the counsel for presenting the complaint. Hence, the appellant cannot shift the entire blame on the counsel. He could have filed an application for condonation of delay, giving reasons, but he failed to do so, and it is not permissible for the Court to condone the delay when no such prayer was made before the learned Trial Court.
In Praveen Qtarmal Parmar [2023 (8) TMI 462 - BOMBAY HIGH COURT], the Bombay High Court held that the delay was impliedly condoned. It also held that the Court had not given an opportunity to pray for the condonation of delay. There cannot be any implied condonation, as noticed above. It is difficult to see how the Court can grant an opportunity for condonation of delay if no such prayer is made.
Conclusion - The complaint was barred by limitation, no implied condonation occurred, the complainant bore responsibility for the delay. The learned Trial Court had taken a reasonable view while deciding the complaint and no interference is required with it while deciding an appeal against acquittal.
Appeal dismissed.
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2025 (1) TMI 620
Maintainability of petition - availability of alternative remedy - Removal of name of the petitioner from the Register of Members - violative of Articles 14, 19 and 21 of the Constitution of India - HELD THAT:- The petitioner should invoke the statutory appeal challenging the impugned order passed by the 2nd respondent. Considering the facts and circumstances, the urgency as contended by the learned counsel for the petitioner, there shall be a stay on the publication in the Gazette of India regarding the removal of the petitioner's name from the register of members. This stay is effective from today i.e., on 03.01.2025 till the date of filing an interlocutory application for interim stay along with the statutory appeal before the Appellate authority by the petitioner. Therefore, the petitioner is at liberty to initiate a statutory appeal before the appellate authority within a period of four (04) weeks from today. The petitioner also entitled to file an interlocutory application along with the statutory appeal, seeking interim suspension of the impugned proceedings dated 23.12.2024.
Conclusion - In view of the statutory appeal provided under Section 22(G) of the Chartered Accountants Act, 1949 the petitioner should invoke the statutory appeal challenging the impugned order passed by the 2nd respondent.
Petition disposed off.
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2025 (1) TMI 619
Rejection of application moved by the petitioner in a pending criminal case seeking stay on the proceedings pending before the trial Court on the basis of interim-moratorium declared by the National Company Law Tribunal, Indore - whether the interim-moratorium declared by the NCLT would be applicable upon the proceedings initiated against the petitioner under Section 138 of the N.I. Act or not? - HELD THAT:- To answer the said question, it is required to see the nature of proceedings initiated against the petitioner by the respondent which are under Section 138 of the N.I. Act and in fact, quasi criminal in nature and indirectly relating to recovery of debt. The said proceedings are initiated by the respondent-complainant against the petitioner for not being able to honour the payment of an amount under the negotiable instruments, which was promised to be paid by the petitioner to the complainant and are indirectly for recovering debt. The proceedings are not considered to be criminal in nature.
The case of P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT], is relevant in the present case, wherein the Supreme Court has observed 'The Section 138/141 proceedings in this case will continue both against the company as well as the appellants for the reason given as well as the fact that the insolvency resolution process does not involve a new management taking over.'
The basic object of the IBC is to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interest of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto. Moreover, the objects of Section 14 of IBC is to ensure that the Corporate Insolvency Resolution Process (CIRP) could proceed unhindered and without any action being taken against the corporate debtor or its assets; it is essentially designed to ensure that the assets and properties of the corporate debtor are duly preserved and no coercive steps are taken against them during the pendency of the CIRP.
Here in this case, since one of the creditors i.e. Bank of Baroda has moved an application under Section 95 of the IBC against the present petitioner, who is one of the Board of Directors of the company, as such, when the adjudicating authority has declared interim-moratorium under Section 96, then it is clear that as per sub-section 2 of Section 96, if an application is made in relation to a firm, the interim-moratorium covers the proceedings against not only the firm but also against the partners of the firm. Here in the present case, since the proceedings have been initiated only against the present petitioner that too by one of the creditors, therefore, the interim-moratorium would apply to the proceedings initiated against the petitioner in respect of any of the transactions in which he was involved and proceedings are initiated for recovery of debts from such debtor. The provisions have overriding effect as has already been observed by the Supreme Court because of a special enactment and it is also observed in the case of P. Mohanraj that the moratorium declared under Section 96 of the IBC has also application over the proceedings of Section 138 of the N.I. Act and that ratio of P. Mohanraj has not been disturbed even in the case of Ajay Kumar Radheyshyam Goenka [2023 (3) TMI 686 - SUPREME COURT], but on the contrary, the Supreme Court has followed the ratio of P. Mohanraj and therefore, no question regarding ignoring the legal position as has been settled by the Supreme Court in the case of P. Mohanraj arises.
Conclusion - The interim-moratorium under Section 96 of the IBC applies to proceedings under Section 138 of the N.I. Act, providing a stay on such proceedings to facilitate the insolvency resolution process.
The order passed by the revisional Court is based upon incorrect interpretation of legal position and as such, not sustainable in the eyes of law. Accordingly, it is set aside - The petition is allowed directing that the proceedings initiated against the petitioner under Section 138 of the N.I. Act, shall remain stayed till the moratorium declared by the NCLT in a pending proceeding of Section 96 of IBC, is in operation.
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2025 (1) TMI 469
Dishonour of cheque - acquittal of offence under Section 138 of the Negotiable Instruments Act, 1881 - rebuttal of presumption under Sections 118 and 139 of the NI Act - HELD THAT:- The present case relates to acquittal of an accused in a complaint under Section 138 of the NI Act. The restriction on the power of Appellate Court in regard to other offence does not apply with same vigor in the offence under NI Act which entails presumption against the accused.
It is also well settled that once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque/ respondent received the cheque in discharge of a legally enforceable debt or liability are raised against the accused.
In the present case, the ground on which the respondent has been acquitted is that since the money was advanced by the complainant and his children, the complainant himself was not entitled to the entire sum of money, that is, Rs. 7,00,000/-. The learned MM noted that the person in whose favour the cheque was issued must be entitled to the cheque amount or must have some special authorization to file a complaint qua the cheque of other person. It was noted that the present complaint was not maintainable qua Manish Gupta and Bhumika Gupta. Consequently, the learned MM noted that since the complainant himself was not entitled to the entire cheque amount thereby making the cheque amount more than the liability owed by the respondent, the respondent was liable to be acquitted.
It is undisputed that the respondent had entered into the agreement with the complainant, pursuant to which the subject cheque was issued to the complainant. The subject cheque, on presentation, dishonoured for the reason “Funds Insufficient.” Thus, all the ingredients to constitute an offence under Section 138 of the NI Act are met - The respondent was obligated to raise a probable defence in order to rebut the presumptions raised against him under Section 139 and 118 of the NI Act. Except for contentions that the complainant was not competent to file the complaint, and that the respondent was not liable to the entire cheque amount towards the complainant, the respondent has failed to raise a probable defence to rebut the presumptions raised against him.
Conclusion - The respondent failed to rebut the presumptions raised against him under Sections 139 and 118 of the NI Act.
The impugned judgment dated 19.11.2018, acquitting the respondent of the offence under Section 138 of the NI Act is accordingly set aside - List on 16.01.2025 for further directions.
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2025 (1) TMI 468
Dishonour of cheque - conviction of the accused under Section 138 of the Negotiable Instruments Act, 1881 - rebuttal of presumptions under Sections 118 and 139 of the NI Act - HELD THAT:- It is trite law that this Court is required to exercise restraint and should not interfere with the findings in the impugned orders or reappreciate evidence merely because another view is possible unless the impugned orders are wholly unreasonable or untenable in law.
It is also well settled that once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque/ respondent received the cheque in discharge of a legally enforceable debt or liability are raised against the accused.
From a perusal of the statement of the petitioner under Section 313 of the CrPC, it is apparent that the petitioner does not dispute that the respondent had advanced a sum of Rs. 20,00,000/- to the petitioner. The petitioner in fact admitted that he had already returned a sum of Rs. 12,00,000/- by way of various cash installments. He stated that the said amount was arranged by him by withdrawing the same from his bank account, and that he also had receipts in that regard - From a perusal of the impugned judgment, it is apparent that the learned ASJ took into account all the contentions of the petitioner. It was noted that since the petitioner had admitted his signatures on the cheque, the presumptions under Section 139 and 118 were raised against the petitioner.
In the present case, the petitioner sought to raise a probable defence by stating that the cheques in question were misplaced from his office for which he had lodged a police complaint and had given intimation to the bank. Though pleaded that the cheques were stolen, and that he had filed a police complaint, the petitioner failed to lead any evidence to corroborate the same. The petitioner failed to produce or append a copy of such police complaint. In the absence of any evidence to substantiate his claim, a bare averment that a police complaint had also been filed does not suffice to refute the presumption raised against the petitioner under Sections 139 and 118 of the NI Act - Since the signatures on the cheque were not disputed, the presumptions were raised against the petitioner under Section 139 and 118 of the NI Act. It was thus up to the petitioner to raise a probable defence on a preponderance of probabilities to contend that there existed no debt/liability in the manner as pleaded by the respondent.
Even otherwise, the learned ASJ did not rely upon the testimony of the Court witnesses while upholding the conviction of the petitioner under Section 138 of the NI Act. Since the signatures were not disputed, the onus was on the petitioner to have raised a probable defence on a preponderance of probabilities that there existed no debt/liability in the manner as pleaded by the respondent.
Conclusion - The petitioner had not led any evidence to controvert the presumptions against him under Section 118 and Section 139 of the NI Act. Once the signature on the cheque was admitted, it was for the petitioner to rebut, and establish a probable defence to show that on a preponderance of probabilities, there existed no debt/liability in the manner pleaded in the complaint/demand notice/affidavit evidence. In the opinion of this Court, the said burden had not been discharged. The learned ASJ rightly upheld the conviction of the petitioner under Section 138 of the NI Act, and the same cannot be faulted with.
Petition dismissed.
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2025 (1) TMI 415
Seeking for interim release of a seized vehicle pending the conclusion of a criminal trial - drug trafficking - HELD THAT:- Upon a reading of the NDPS Act, this Court is of the view that the seized vehicles can be confiscated by the trial court only on conclusion of the trial when the accused is convicted or acquitted or discharged. Further, even where the Court is of the view that the vehicle is liable for confiscation, it must give an opportunity of hearing to the person who may claim any right to the seized vehicle before passing an order of confiscation. However, the seized vehicle is not liable to confiscation if the owner of the seized vehicle can prove that the vehicle was used by the accused person without the owner’s knowledge or connivance and that he had taken all reasonable precautions against such use of the seized vehicle by the accused person.
This Court is further of the opinion that there is no specific bar/restriction under the provisions of the NDPS Act for return of any seized vehicle used for transporting narcotic drug or psychotropic substance in the interim pending disposal of the criminal case.
In the absence of any specific bar under the NDPS Act and in view of Section 51 of NDPS Act, the Court can invoke the general power under Sections 451 and 457 of the Cr.P.C. for return of the seized vehicle pending final decision of the criminal case. Consequently, the trial Court has the discretion to release the vehicle in the interim. However, this power would have to be exercised in accordance with law in the facts and circumstances of each case.
This Court is of the view that criminal law has not to be applied in a vacuum but to the facts of each case. Consequently, it is only in the first two scenarios that the vehicle may not be released on superdari till reverse burden of proof is discharged by the accused-owner. However, in the third and fourth scenarios, where no allegation has been made in the charge-sheet against the owner and/or his agent, the vehicle should normally be released in the interim on superdari subject to the owner furnishing a bond that he would produce the vehicle as and when directed by the Court and/or he would pay the value of the vehicle as determined by the Court on the date of the release, if the Court is finally of the opinion that the vehicle needs to be confiscated.
This Court is also of the view that if the Vehicle in the present case is allowed to be kept in the custody of police till the trial is over, it will serve no purpose. This Court takes judicial notice that vehicles in police custody are stored in the open. Consequently, if the Vehicle is not released during the trial, it will be wasted and suffering the vagaries of the weather, its value will only reduce.
Conclusion - In the absence of a specific prohibition under the NDPS Act, the general provisions of the Cr.P.C. could be applied for the interim release of seized vehicles. The appellant was entitled to the interim release of the vehicle, subject to conditions ensuring its availability for trial and preventing its misuse.
The present Criminal Appeal is allowed with directions to the trial Court to release the Vehicle in question in the interim on superdari after preparing a video and still photographs of the vehicle and after obtaining all information/documents necessary for identification of the vehicle, which shall be authenticated by the Investigating Officer, owner of the Vehicle and accused by signing the same.
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2025 (1) TMI 414
Dishonour of cheque - vicarious liability of partners of the accused-firm - whether this Court can exercise inherent powers under Section 482 of the Code (Section 528 of the BNSS) for quashing the complaint bearing no. 4971/2020 and impugned order dated 3rd August, 2023? - HELD THAT:- It is imperative to understand the scope of interference of this Court under Section 482 of the Code i.e., Section 528 of the BNSS, wherein, this Court is bestowed with the inherent jurisdiction to exercise its powers to either “prevent any abuse of process of law” or “secure the ends of justice”. However, the said terminologies are devoid of any specific definition due to its wide ambit and therefore, the determination as to whether the case falls within the scope of the aforesaid term lies with the Court and must be testified based on the established principles of law. Moreover, under this provision, the Court must exercise its powers sparingly, cautiously and in exigent cases.
The Court can exercise its inherent powers under Section 482 of the Code to quash complaints and criminal proceedings emanating therefrom, if it does not constitute a prima facie offence against the accused and the same was elaborately dealt with by the Hon’ble Supreme Court in the case of INDIAN OIL CORPORATION VERSUS NEPC INDIA LTD & ORS [2006 (7) TMI 575 - SUPREME COURT].
Considering the peculiar factual situation, the demand notice dated 1st September, 2020 issued under Section 138 of the NI Act is within the prescribed time and despite the service of the same on the petitioners, no amount was paid by the petitioners. Therefore, an offence under Section 138 of the NI Act has been made out against the petitioners - Now coming to Section 141 of the NI Act, it is observed that when a company commits an offence under Section 138 of the NI Act, any person who is “in charge of” or “responsible for the conduct of the affairs of the company” shall be held guilty of the offence. However, if it is proved that the said offence is committed without the knowledge, the said person cannot be made liable. Therefore, the burden of proving the same lies on such person claiming such defence.
It is a settled principle of law that under Section 138 of the NI Act, only a drawer of the cheque is liable for the dishonour of the said cheque. In this case, Mr. Harkaran Singh has issued cheque nos. (a), (b), (d), (e) (g), (h) and (i) in his personal capacity and not in the name of the firm and hence, the petitioners, as partners of the accused-firm, cannot be made to share the liability for the dishonour of said cheques. However, Mr. Harkaran Singh has issued cheque nos. (c) and (f) to the complainant as an Authorised Signatory on behalf of the accused-firm. Therefore, the learned Revisional Court has rightly observed that a prima facie case has already been made out under Sections 138/141 of the NI Act against the petitioners only with respect to cheque nos. (c) and (f).
Conclusion - This Court is of the considered view that the learned Revisional Court has not committed any error or illegality in passing the impugned order and therefore, this Court does not find any reason to exercise its inherent powers under Section 482 of the Code to grant the reliefs prayed for.
The impugned order passed by the learned Session Judge, South-East District, Saket Courts, New Delhi in criminal revision petition bearing no. 455/2022 is, hereby, upheld - Petition dismissed.
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2025 (1) TMI 413
Power of Arbitral Tribunal to recall/review its orders - discretion of Hon’ble Tribunal to condone the delay in filing the SOD and CC - whether “sufficient cause” existed or not for the purpose of condoning delay in filing Statement of Defence? - HELD THAT:- Having seen the order passed by learned Sole Arbitrator, this Court does not find any reason to interfere with the impugned order. The aspect whether the ground shown is “sufficient or not” is primarily in the domain of discretionary jurisdiction and even if this Court was to take a contrary view, the impugned order cannot be set aside while exercising supervisory power under Article 227 of Constitution of India, particularly in context of arbitral proceedings where such interference is, to a very large extent, proscribed.
There is also nothing which may indicate that exercise of such discretion smacks off any bad faith or demonstrates any perversity, much less of extreme nature.
Conclusion - Arbitral Tribunals have the power to recall orders and condone delays upon showing "sufficient cause," and that judicial interference in arbitral processes should be minimal.
Petition dismissed.
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2025 (1) TMI 334
Dishonour of Cheque - legally enforceable debt or other liability - Nature of Advance Payment - whether the cheque as given by the applicant was in discharge of a legally enforceable debt/liability or not? - Complainant i.e. opposite party no.2 has not disclosed the lawyer and client relationship between him and the applicant - HELD THAT:- It is clear that for commission of an offence under Section 138 N.I. Act, the cheque that is dishonoured must represent a legally enforceable debt not only on the day when it was drawn but also on the date of its maturity/presentation. If the cheque presented for collection of total value of the cheque without endorsing the part payment made by the drawer is dishonoured no offence under Section 138 N.I. Act would be attracted, as being held in the case of DASHRATHBHAI TRIKAMBHAI PATEL VERSUS HITESH MAHENDRABHAI PATEL & ANR. [2022 (10) TMI 424 - SUPREME COURT].
In the present case, the opposite party no.2 has mentioned that he had given Rs.12,25,000/- in cash to the applicant for purposes of purchasing property. Although, in the complaint as well as notice, the complainant has spoken about returning of Rs.11,00,000/- by giving a cheque in this regard but there is no whisper about Rs.1,25,000/-. In case it is taken that Rs.1,25,000/- has already been paid, therefore, as part payment was already made, the complaint under Section 138 N.I. Act could not have been entertained - Be that as it may, once the complainant i.e. opposite party no.2 has not disclosed the lawyer and client relationship between him and the applicant and as for the first time admitted the aforesaid fact in his counter affidavit, the story in the complaint of giving advance in cash without disclosing as to how and from where such an arrangement was made also gives benefit to the applicant who under such relationship as admitted by the opposite party no.2 in his counter affidavit has mentioned about an agreement which cannot be disbelieved by this Court.
As per the provision of Section 202 Cr.P.C. as amended with effect from 23.6.2006, the requirement is that in those cases where the accused is residing at a place beyond the area in which the concerned Magistrate exercises his jurisdiction, it is mandatory on the part of Magistrate to conduct an enquiry or investigation before issuing the process. That means, in case, if such an enquiry is not conducted in cases where the accused resides at a place beyond the area in which the Magistrate exercises his jurisdiction, the purpose of amendment in Section 202 Cr.P.C. would frustrate.
Further the Apex Court in BHARAT BARREL & DRUM MANUFACTURING COMPANY VERSUS AMIN CHAND PAYRELAL [1999 (2) TMI 627 - SUPREME COURT], had considered Section 118(a) of the Act and held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable and defendant can prove the non-existence of a consideration by raising a probable defence.
The present case appears to be a case of malicious prosecution wherein the opposite party no.2 has concealed the real fact of lawyer-client relationship and has wrongly disclosed about Dilip Kumar Singh who is related to the applicant being Manager of the Institution where opposite party no.2 was working at the relevant point of time to which the Court cannot close its eyes as at the instance of relative of the applicant, the present complaint has been filed concealing the real relationship of lawyer & client.
It is also relevant to point out the fact that scope and ambit of Section 482 Cr.P.C. is a very agitated and debatable issue. Nevertheless, there are some cases which have got wide acceptance in the legal fraternity and hence, are used as the minor guidelines/principles governing the cases of quashing criminal proceedings.
Conclusion - In the facts of the present case, where it has been established that opposite party no.2 has not approached the Court with clean hand, noticing his conduct as is clear from the records, this Court finds it to be a fit case for exercising powers under Section 482 Cr.P.C. Keeping in mind that criminal prosecution is a serious matter, it effects the liberty of a person, no greater damage can be done to the reputation of a person than dragging him in a criminal case, continuance of prosecution would be nothing but an abuse of the process of law and will be a mental trauma to the applicants, it becomes necessary for this Court to invoke inherent powers under Section 482 Cr.P.C. in present facts and circumstances of his case.
This Court finds a good ground for quashing the impugned summoning order as well as entire proceedings - The present application under Section 482 Cr.P.C. is, accordingly, allowed.
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2025 (1) TMI 302
Requirement to implead a Foreign Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992 in the bail application filed by a foreigner within the meaning of the Foreigners Act, 1946 - HELD THAT:- Under clause (b) of Section 3(2) of the Act, there is a power vested in the Central Government to issue an order generally or with respect to any particular foreigner or class of foreigners that they shall not depart from India or shall depart subject to observance of such conditions on departure as may be prescribed. The Rules do not impose any such restriction on departure from India. However, according to clause 5(1)(b) of the Order, no foreigner shall leave India without the leave of the Civil Authority having jurisdiction. When a foreigner’s presence is required in India to answer a criminal charge, permission to leave India must be refused. Under the Order, the Civil Authority can impose restrictions on the movements of a foreigner. Therefore, once a foreigner is released on bail, he cannot leave India without the permission of the Civil Authority, as provided in clause 5 of the Order. Under clause 11 and other clauses of the Order, various restrictions can be imposed on a foreigner while he is in India. The said power is wholly independent of the power to grant bail.
Conclusion - There are no propriety in issuing a direction that either the Civil Authority or the Registration Officer should be made a party to a bail application filed by a foreigner or a notice of the bail application be issued to the said authorities. The reason is that the authorities under the Act and the Order have no locus to oppose bail application filed by a foreigner unless bail is sought where the allegation is of the offence punishable under Section 14 of the Act. The impleadment of the Civil Authority or Registration Officer in all bail applications filed by foreigners may result in unnecessary delay in deciding the bail applications.
Appeal disposed off.
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2025 (1) TMI 301
Requirement of registration of the document - Determination of stamp duty under Article 22A of Schedule 1A of the Indian Stamp Act, 1899 - collusion between the appellant and Respondent No.2 and the Civil Suit was instituted only with an intent to evade the payment of stamp duty.
Requirement of registration of the document - Section 17 of the Registration Act, 1908 - HELD THAT:- Section 17(1) of the Act, 1908 specifies the documents for which Registration is compulsory. Sub-section (2) of Section 17 carves out the exceptions. The documents/instruments enumerated in sub-section (2) of section 17 are not compulsorily registerable. The exemption for decree or order of the Court is covered under section 17(2)(vi) of the Act, 1908 with a rider. Under the said provision, any decree or order of a Court (except the decree or order expressed to be made on compromise and comprising immovable property other than that which is the subject-matter of the suit or proceedings) would not require compulsory registration - To avail the exemption from the mandate of compulsory registration of documents conveying immovable property of a value of more that Rs 100/-, the compromise decree arrived must be only in respect of the property that is the subject-matter of the suit. The compromise arrived at before the Lok Adalat and the award passed by the Lok Adalat thereto assume the character of a decree passed under Order XXIII Rule 3 and would also come within the ambit and purview of sub-section (2) of section 17 of the Act, 1908.
The appellant is entitled to possession of the subject land and the Respondent No.2 shall not interfere with the same; and the appellant is entitled to get his name recorded in the revenue records in respect of the subject land in the place of the Respondent No.2. Pertinently, it is to be pointed out that the said compromise decree has not been challenged by the Respondent No.1 before any Court of law and hence, the same attained finality and is binding on the parties.
Though the Respondent No.1 alleged that the suit was filed by the appellant in collusion with the Respondent No.2 and within a short time from the date of initiation of the suit, the parties compromised the matter in order to evade payment of stamp duty, no concrete evidence was placed before this court to substantiate that the same. That apart, it is not the case of the Respondent No.1 - State that the suit itself was collusive as the property was not in possession of the appellant and that it belongs to any other third party - There is no finding of collusion between the parties in entering into the compromise by any Court as on date. Indisputably, the property is the subject matter of the suit. Thus, the appellant has satisfied the conditions enumerated in section 17(2)(vi) of the Act, 1908 and hence, the subject land acquired by him by way of compromise decree, requires no registration.
Payment of stamp duty for mutation of the subject land - it is the specific plea of the appellant that “consent decrees” / “decrees” are not chargeable with “stamp duty” under the Indian Stamp Act, 1899 as applicable to the State of Madhya Pradesh - HELD THAT:- The stamp duty is not chargeable on an order/decree of the Court as the same do not fall within the documents mentioned in Schedule I or I-A read with Section 3 of the Indian Stamp Act, 1899. Though the Collector of Stamps determined the stamp duty for the subject land as per Article 22 of Schedule IA of the Indian Stamp Act, 1899, which states about conveyance, in this case, we have already held that the compromise decree does not fall under the instruments mentioned in the Schedule and that it only asserts the pre-existing rights. Therefore, in the facts of the case, the consent decree will not operate as conveyance as no right is transferred and the same does not require any payment of stamp duty. Since the appellant has only asserted the pre-existing right and no new right was created through the consent decree, the document pertaining to mutation of the subject land is not liable for stamp duty.
Conclusion - i) The appellant has satisfied the conditions enumerated in section 17(2)(vi) of the Act, 1908 and hence, the subject land acquired by him by way of compromise decree, requires no registration. ii) Since the appellant has only asserted the pre-existing right and no new right was created through the consent decree, the document pertaining to mutation of the subject land is not liable for stamp duty.
Appeal allowed.
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