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Indian Laws - Case Laws
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2024 (12) TMI 1527
Abetting the suicide of the deceased - Refusal to discharge the appellants – accused from offences punishable under sections 306, 498A and 114 of the Indian Penal Code, 1860 - challenge to order of High Court wherein the High Court in the impugned order has dismissed the same and held that the appellants failed to bring any material on record to prove that a prima facie case is not made out to frame charges against them.
Whether a prima facie case under Section 498A, IPC is made out against the appellant – accused? - HELD THAT:- In the present case, the deceased has committed suicide after twelve years of marriage. In these twelve years, the informant and other witnesses on record have stated that the deceased had informed them on multiple occasions that she was subjected to physical and mental harassment by the appellants herein. It has also been stated that once before she had returned to her parental home owing to the alleged cruelty and was later sent back to her matrimonial house. Deceased’s father, who is the informant, has also stated that around twelve months prior to her death, the appellants had sold the deceased’s streedhan and had tortured her when she demanded them back. The same has also been stated by her relatives who have been examined by the Investigating Officer during investigation - From a perusal of the FIR, findings of the Investigating Officer in the chargesheet as well as the statements of the deceased’s cousins recorded during investigation prima facie indicate that the deceased was subjected to physical as well as mental cruelty by her husband and the in-laws. There is also the specific instance related to the alleged selling of the gold ornaments and subsequent cruelty upon the demand for return made by the deceased. A preliminary analysis, as required during the stage of charge-framing, points towards the probable commission of the offence of cruelty as provided under section 498-A, IPC.
The appellants cannot be discharged for offence under section 498-A, IPC and should be charged with and tried for the same.
Whether a prima facie case under Section 306, IPC is made out against the appellant – accused? - HELD THAT:- Section 306 of the IPC penalizes those who abet the act of suicide by another. For a person to be charged under this section, the prosecution must establish that the accused contributed to the act of suicide by the deceased. This involvement must satisfy one of the three conditions outlined in Section 107 of the IPC. These conditions include the accused instigated or encouraged the individual to commit suicide, conspiring with others to ensure that the act was carried out, or engaging in conduct (or neglecting to act) that directly led to the person taking his/her own life.
For a conviction under Section 306 IPC, there must be clear evidence of direct or indirect acts of incitement to commit suicide. The cause of suicide, especially in the context of abetment, involves complex attributes of human behavior and reactions, requiring the Court to rely on cogent and convincing proof of the accused’s role in instigating the act. Mere allegations of harassment are not enough unless the accused’s actions were so compelling that the victim perceived no alternative but to take their own life. Such actions must also be proximate to the time of the suicide. The Court examines whether the accused’s conduct, including provoking, urging, or tarnishing the victim’s self-esteem, created an unbearable situation. If the accused's actions were intended only to harass or express anger, they might not meet the threshold for abetment or investigation. Each case demands a careful evaluation of facts, considering the accused’s intent and its impact on the victim.
This Court in UDE SINGH AND ORS. VERSUS STATE OF HARYANA [2019 (7) TMI 2054 - SUPREME COURT], held that to convict an accused under Section 306 IPC, the intent or mental state to commit the specific crime must be evident when assessing culpability.
The appellants did not have the requisite mens rea and neither did they commit any positive or direct act or omission to instigate or aid in the commission of suicide by the deceased - the ingredients for the offence under Section 306, IPC are not made out even on a preliminary analysis of the material on record. Therefore, they cannot be charged under Section 306, IPC and thus deserve to be discharged of the same.
Conclusion - i) The charge u/s 498A, IPC upheld, emphasizing that the allegations and evidence presented constituted a prima facie case of cruelty. The trial under this provision will proceed against the appellants. ii) Regarding Section 306, IPC, the Court found no sufficient evidence of abetment, resulting in the discharge of the appellants from this charge.
The appeal filed by the appellants is partly allowed, they are discharged from the charges under Section 306 of the IPC, however the charge under Section 498A of the IPC is upheld and the trial under this provision shall proceed against them.
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2024 (12) TMI 1446
Dishonour of Cheque - mandatory presumption as provided under Section 139 of the Negotiable Instruments Act drawn in favour of the complainant - whether the accused has succeeded in rebutting the presumption drawn in favour of the complainant? - HELD THAT:- A presumption is an inference to the existence of a fact not actually known arising from its connection with another which is known. A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof. Analysing the terms “proved” and “disproved” as provided in Section 3 of the Evidence Act, a court shall presume a Negotiable Instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. The necessary conclusion is that for rebutting such a presumption, what is needed is to raise a probable defence. All the circumstances, including the evidence adduced on behalf of the complainant, could be relied upon.
The rebuttal does not have to be conclusively established, but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of responsibility being that of the prudent man.
The admitted case of the complainant is that his wife and the accused had a financial transaction in respect of an immovable property. But, his wife came to the box and denied the entire transactions. She even denied to have acquaintance with the accused - The accused has brought in throwing circumstances that make the case of the complainant suspicious. Unless the holder of the instrument removes such suspicion by tendering a satisfactory explanation, no conviction is legally permissible by invoking the statutory presumption. The accused has successfully discharged his initial onus of proof showing that the existence of consideration was doubtful. The onus now shifted to the complainant who is obliged to prove it as a matter of fact. In the present case, the complainant failed to prove the same.
The accused having been acquitted by the trail Court is entitled to the presumption of innocence. The presumption of innocence is further reaffirmed and strengthened by the trial Court. If reasonable conclusions are possible based on the evidence on record, the appellate court should not disturb the finding of fact recorded by the trial Court.
In the instant case, the complainant failed to give a satisfactory explanation for the suspicious circumstances brought on record regarding the consideration of Ext.P1 cheque. The view taken by the trial Court cannot be held to be illegal, improper or contrary to law. Therefore, the reasoning recorded by the trial Court for acquitting the accused was possible and plausible and no interference is required.
Conclusion - The accused having been acquitted by the trail Court is entitled to the presumption of innocence. The presumption of innocence is further reaffirmed and strengthened by the trial Court. The complainant failed to give a satisfactory explanation for the suspicious circumstances brought on record regarding the consideration of Ext.P1 cheque.
Appeal dismissed.
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2024 (12) TMI 1445
Seeking appointment of a sole Arbitrator for resolution of its claims qua non-applicant Company - resistance for appointment of an Arbitrator in respect of the claim put forth by applicant-Company, has been made fundamentally in view of certain subsequent events, transpired after filing of the instant arbitration application - Time limitation.
Seeking appointment of a sole Arbitrator for resolution of its claims qua non-applicant Company - HELD THAT:- This Court finds that as far as execution of purchase agreement dated 28.07.2014, whereunder the copper was agreed to be supplied by non-applicant-Company to the applicant-company and supply of copper in pursuance thereof, is an undisputed fact. The arbitration agreement, contained in such purchase agreement in Clause 16(B) is also not in dispute.
A seven judges’ Bench of the Hon’ble Supreme Court in Re: Interplay Between Arbitration Agreements Under The Arbitration and Conciliation Act 1996 And the Indian Stamp Act, 1989 [2023 (12) TMI 897 - SUPREME COURT (LB)], has observed in Para Nos.152 & 154 that the omission of Section 11(6A), through Arbitration and Conciliation (Amendment) Act, 2019 (Act 33 of the 2019), has not been notified in the official gazette and therefore, the said provision continues to remain in full force.
It is hereby observed that undeniably the dispute between the parties has not been resolved amicably and the arbitration clause contained in Clause 16(B) of the purchase agreement comes in play. Before filing the arbitration application, the applicant had issued legal notices dated 08.12.2021 and 12.01.2022, of which though, reply of one notice dated 12.01.2022 has been filed by the non-applicant Company on 03.09.2022, but admittedly the Arbitrator has not been appointed.
Time limitation - HELD THAT:- The arbitration application is well within limitation.
Conclusion - The existence of an arbitration agreement between the parties is confirmed and a sole arbitrator is appoined. The arbitration application is well within limitation.
The Arbitration Application stands disposed of accordingly.
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2024 (12) TMI 1356
Grant of renewal of license L-10BB on account of the fact that premises, wherein business was being run in previous years in terms of form L-10BB stands upgraded to principal place of business - HELD THAT:- It is not in dispute that after the orders passed by this Court, the writ petitioner has in fact shifted his premises and had sought a licence, which was rejected by the appellant-department. Essentially, in the impugned order dated 16.4.2024, there is no mention as to in which premises, the business is being run by the writ petitioner, that was described and was the subject matter of the writ petition.
The appeal is dismissed as having been rendered infructuous.
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2024 (12) TMI 1292
Dishonour of Cheque - vicarious liability of petitioner, as an additional director - petitioner was neither the signatory of the cheques in question nor the managing direction of the respondent no. 3 company - Section 141 of the NI Act, 1881 - HELD THAT:- In the case of State of Haryana v. Bhajan Lal [1990 (11) TMI 386 - SUPREME COURT], the Hon’ble Supreme Court had set out the broad categories of cases in which the inherent powers under Section 482 of the Cr.P.C. could be exercised - From the judgment, it is clear that the Court may quash a complaint under Section 482 of the CrPC if it is satisfied that the allegations made against the accused in the complaint, even when they are taken at face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. Further, the Court may also invoke its extraordinary powers to quash a complaint if the allegations made in the complaint are so absurd and improbable that no prudent person may reach a conclusion that there is sufficient ground for proceeding against the accused.
In the present case, this Court is concerned with the determination of criminal liability arising due to dishonour of cheques. As can be clearly established from various provisions that in case of a company, the vicarious liability as contemplated under Section 141 of the NI Act extends criminal liability under Section 138 of the NI Act to every person who at the time of the commission of the said offence was in charge of, or responsible for the conduct of the business of the said company - it is well-established that in order to subject a person to criminal proceedings under Section 141 of the NI Act, a clear case should be spelled out against the accused with necessary averments in the complaint that the accused is involved in the commission of the said offence.
In the present case, it is undisputed that the respondent no. 3 company issued cheque 1 on 28th September, 2014 and cheque 2 on 30th September, 2014 in favour of respondent no. 2. Both the cheques were returned unpaid on 18th December, 2014 by the payee bank due to insufficiency of funds, and subsequently, a notice was issued was issued on 15th January, 2015 demanding the payment of the cheque amount, which was not paid even after the expiry of the timeline of 15 days after the receipt of the notice of demand.
Conclusion - This Court is of the considered view that the petitioner had ceased to be an additional director at the time of the commission of the said offence under Section 141 of the NI Act and there is nothing on record to show that he was in control of or managing the conduct of the business or day-to-day affairs of the respondent no. 3 company during the relevant timeline of the commission of the said offence. Therefore, no offence is prima facie made out against the petitioner under Section 141 of the NI Act from the uncontroverted allegations made against the petitioner in the instant complaint.
This Court finds it a fit case to exercise its extraordinary powers under Section 482 of the CrPC for quashing of the Criminal Complaint - Petition disposed off.
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2024 (12) TMI 1291
Dishonour of Cheque - vicarious liability - petitioner's involvement in the company's affairs or not - whether this Court can exercise inherent powers under Section 482 of the Code (Section 528 of the BNSS) for quashing of the complaint bearing no. 7369/2022 and summoning order dated 6th January, 2020? - HELD THAT:- It is pertinent to understand the contention of the petitioner that the said complaint and the summoning order are liable to be quashed as the petitioner is not involved in the day-to-day affairs of the company and was unaware of the cheques issued to the complainant, hence, the offences under Section 138 and 141 of the NI Act are not made out.
In the instant case, the complainant presented the said cheque for the second time on 19th October, 2019, which was dishonored vide memo dated 21st October, 2019 for insufficiency of funds. As required by Section 138 of the NI Act, the complainant issued a demand notice dated 2nd November, 2019, which was issued well within the statutory period of 30 days. However, despite intimating the accused persons, including the petitioner, regarding the dishonor of the cheque and payment of the due amount, the accused persons including the petitioner failed to pay the said amount, thereby, making out an offence under Section 138 of the NI Act. Accordingly, the aforesaid complaint was filed - Section 141 of the NI Act merely states the liability of certain people for the offences committed by the company, which needs to satisfy the test of who is “in charge of” or “responsible for the conduct of company’s affairs”. However, the extent of their liability is discussed elaborately in a catena of judgments.
In the instant case, even though the petitioner is not an authorised signatory of the cheque, she is an officer of the company, holding a directorial position at the respondent no.4-company. Therefore, not being an authorised signatory does not absolve her from the liability of the commission of offence as long as the requisites under Section 138 and 141 of the NI Act are met - this Court has observed a prima facie case against the petitioner for her involvement in the day-to-day activities of the conduct of the company affairs at the time of commission of the offence under Section 141 of the NI Act and her knowledge in issuance of the said cheque to the complainant.
Conclusion - This Court is of the view that the learned MM has rightly issued summons against the petitioner after being satisfied that a prima facie case is made out under Section 138 of the NI Act. Moreover, sufficient reasons were given in the summoning order, wherein, the learned MM observed that payment was not made by the petitioner despite the issuance of the demand notice dated 2nd November, 2019 - this Court is of a considered view that the learned MM has not committed any error or illegality in passing the summoning order and therefore, this Court does not find any reason to exercise its inherent powers under Section 482 of the Code (Section 528 of the BNSS).
Petition dismissed.
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2024 (12) TMI 1232
Interpretation of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 - mis-interpretation of the provision without recording the findings as mandated in Section 37 of the said Act - HELD THAT:- Section 52A was inserted only for the purpose of early disposal of the seized contraband drugs and substances, considering the hazardous nature, vulnerability to theft, constraint of proper storage space etc. There cannot be any two opinions on the issue about the early disposal of the contraband drugs and substances, more particularly when it was inserted to implement the provisions of International Convention on the Narcotics Drugs and Psychotropic Substances, however delayed compliance or non-compliance of the said provision by the concerned officer authorised to make application to the Magistrate could never be treated as an illegality which would entitle the accused to be released on bail or claim acquittal in the trial, when sufficient material is collected by the Investigating Officer to establish that the Search and Seizure of the contraband substance was made in due compliance of the mandatory provisions of the Act.
It is significant to note that as per Section 54 of the said Act, the courts are entitled to presume, unless and until the contrary is proved that the accused had committed an offence under the Act in respect of any narcotic drug or psychotropic substance etc. for the possession of which he failed to account satisfactorily. Therefore, unless such statutory presumption is rebutted by the accused during the course of trial, there would be a prima facie presumption that the accused had committed the offence under the Act, if he is found to have possessed the contraband drug and substance, and if he fails to account satisfactorily, as contemplated in the said provision of Section 54.
In case of State of H.P. vs. Pirthi Chand and Another [1995 (11) TMI 433 - SUPREME COURT] this Court following the observations made by the Constitution Bench in Pooran Mal case [1973 (12) TMI 2 - SUPREME COURT] held that 'It would be seen that the organised traffic in contraband generates deleterious effect on the national economy affecting the vitals of the economic life of the community. It is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. In spite of illegal search property seized, on the basis of said search, it still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial.'
In State of Punjab Vs. Makhan [2004 (2) TMI 663 - SUPREME COURT], this Court upheld the conviction, where the contraband was recovered during a chance recovery, even though the procedure under Section 52A was not followed.
From the above decisions, the position that emerges is that this Court in catena of decisions, has approved the procedure of spot searches and seizures in compliance with the Standing Orders and the Notifications issued by the NCB and the Central Government, and upheld the convictions on being satisfied about the search and seizure made by the officers as per the provisions of the Act and being satisfied about the scientific evidence of F.S.L. reports etc. - The evidence collected during the course of investigation in legal and proper manner and sought to be used in the course of trial with regard to the seized contraband substance could not be simply brushed aside, on the ground of procedural irregularity if any, committed by the concerned officer authorised in making application to the Magistrate as contemplated under Section 52A of the Act.
The impugned order based on the inferences and surmises, in utter disregard of the statutory provision of the Act and in utter disregard of the mandate contained in Section 37 of the Act, and granting bail to the accused merely on the ground that the compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside. Since, the High Court has not considered the application of the respondent on merits and has also not considered the mandatory requirement under Section 37(1)(b) of the Act, it is deemed appropriate to remand the case to the High Court for deciding the bail application of the respondent afresh on merits and in accordance with law.
The matter is remanded for fresh consideration on merits - appeal allowed by way of remand.
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2024 (12) TMI 1231
Dishonour of Cheque - challenge to order of conviction passed by the Trial Court and affirmed by the Sessions Court for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - authorized signatory of a company falls within the ambit of the expression "drawer" or not - Meaning of the expression "on an account maintained by him" used in Section 138 of the NI Act - Scope of the expression "any debt or other liability" appearing in Section 138 of the NI Act - vicarious liability for the offence said to have been committed by the company.
Whether the accused could be said to be covered by the expression “account maintained by him” as it appears in Section 138 of the NI Act? - HELD THAT:- It is only the drawer of the cheque who can be held liable under Section 138. Section 141 is an exception to this scheme of the NI Act and provides for vicarious liability of persons other than the drawer of the cheque in cases where the drawer of the cheque under Section 138 is a corporate person.
The question as to whether a person who was not the drawer of the cheque upon an account maintained by him could be held to be liable for an offence under Section 138 of the NI Act fell for the consideration of this Court in the case of P.J. Agro Tech Ltd. and Others v. Water Base Ltd. [2010 (7) TMI 280 - SUPREME COURT]. The Court construed the provision strictly and answered the question in the negative.
As per the legislative scheme it is only the drawer of the cheque who is sought to be made liable for the offence punishable under Section 138 of the NI Act. Thus, the next question that requires consideration is whether a Director of a company, who is also the authorised signatory, to sign and issue cheques on its behalf could be said to be the drawer of a cheque drawn upon the bank account held in the name of the company. In other words, whether such an authorised signatory could be said to “maintain” the bank account upon which the dishonoured cheque has been drawn for the reason that such a person has the authority to enter into transactions using the bank account of the company and also look after the day-to-day functioning of the bank account of the company.
Whether authorized signatory of a company falls within the ambit of the expression “drawer”? - HELD THAT:- This Court in one of its recent decisions in the case of Shri Gurudatta Sugars Marketing (P) Ltd. v. Prithviraj Sayajirao Deshmukh and Others [2024 (7) TMI 1308 - SUPREME COURT] had the occasion to consider the issue of whether the authorised signatory of a company who had signed a cheque drawn on the bank account of the company and which got dishonoured subsequently could be held to be liable for the payment of interim compensation under Section 143A of the NI Act. This Court while answering the issue in the negative, applied the doctrine of separate corporate personality and held that it is only the drawer of the cheque who could be held to be liable for the payment of interim compensation under Section 143A of the NI Act and the authorised signatory of a company cannot be said to be the drawer of the cheque.
Meaning of the expression “on an account maintained by him” used in Section 138 of the NI Act - HELD THAT:- Any delegation of authority to manage the account does not alter the intrinsic relationship existing between the account holder and the banker as envisaged under the NI Act. Corporate persons like companies, which are mere legal entities and have no soul, mind or limb to work physically, discharge their functions through some human agency recognised under the law to work. Therefore, if some function is discharged by such human agency for and on behalf of the company it would be an act of the company and not attributable to such human agent. One such instance of discharge of functions could be the authority to manage the bank accounts of the company, issue and sign cheques on its behalf, etc. which may be delegated to an authorised signatory. However, such authorisation would not render the authorised signatory as the maker of those cheques. It is the company alone which would continue to be the maker of these cheques, and thus also the drawer within the meaning of Section 7 of the NI Act.
It is not the case of the complainant that the cheque in question was drawn by the accused on a bank account maintained by him, rather the case is that the cheque was issued in discharge of the personal liability of the accused towards the complainant, and hence there was no occasion for it to implead the company as an accused.
Scope of the expression “any debt or other liability” appearing in Section 138 of the NI Act - HELD THAT:- Section 138 of the NI Act does not envisage that only those cases where a cheque issued towards the discharge of the personal liability of the drawer towards the payee gets dishonoured would come within the ambit of the provision. The expression “of any debt or other liability” appearing in Section 138 when read with the Explanation to the provision is wide enough to bring any debt or liability which is legally enforceable within its fold. Thus, the requirement under the provision is that the debt or any other liability has to be legally enforceable and the emphasis is not on the existence of such debt or other liability between the drawer and the payee. A number of decisions of this Court have clarified that even those cases where a person assumes the responsibility of discharging the debt of some other person, and in furtherance thereof draws a cheque on an account maintained by him, which subsequently gets dishonoured upon being presented before the drawee, would be covered by Section 138 if the payee is able to establish that there was some sort of an arrangement by way of which the debt was assumed by the drawer.
Section 141 of the NI Act - HELD THAT:- It is the drawer Company which must be first held to be the principal offender under Section 138 of the NI Act before culpability can be extended, through a deeming fiction, to the other Directors or persons in-charge of and responsible to the Company for the conduct of its business. In the absence of the liability of the drawer Company, there would naturally be no requirement to hold the other persons vicariously liable for the offence committed under Section 138 of the NI Act.
The High Court while rejecting the contention of the petitioner therein, adverted to the object of Section 138 of the NI Act to hold that the authorized signatory could be said to be the drawer of the cheque as he was “maintaining” the account held in the name of the proprietorix concern and thus could be held liable under Section 138 of the NI Act.
In the case on hand, the accused was prosecuted in his individual capacity and not in his capacity of being the Director of the Shilabati Hospital Pvt. Ltd. Although it is undisputed that the accused signed the cheque in question, yet as the cheque was drawn not on an account maintained by him with a Banker but was issued on an account maintained by the hospital, the requirement of Section 138 of the Act cannot be said to have been complied with - The High Court rightly held that in the absence of the principal offender having been arraigned as an accused, prosecution for the commission of an offence under Section 138 of the NI Act could not have proceeded against the accused.
It is trite law that an act may constitute an offence under more than one statute. The encashment of the cheque for an amount of Rs 7,00,000/- issued by the complainant in favour of the accused stood proved during the course of the trial. Further, the conduct of the accused in not replying to the statutory notice of dishonour of cheque issued by the lawyer for the complainant and in not taking the plea of the cheque having been drawn on the account of the company in his capacity as a Director during the course of trial undoubtedly raises questions as regards his dishonest intention in not repaying the amount borrowed by him from the complainant.
Appeal dismissed.
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2024 (12) TMI 1230
Dishonour of Cheque - Seeking quashing of the summoning order - challenge to proceedings under Section 138 of the NI Act - vicarious liability of petiitoner - whether proceedings under Section 138 of the NI Act can continue against individuals after the commencement of the CIRP proceedings against the accused company?
HELD THAT:- It is evident that insolvency proceedings against the company were initiated under the provisions of the IBC, and an order under Section 14 of the IBC was issued on 31.10.2019. The IBC explicitly provides that when a corporate debtor is undergoing proceedings before the adjudicating authority (NCLT), the control and management of the corporate debtor are vested in the Interim Resolution Professional.
It is undisputed that the cheques in question were dated 15.01.2020 and 15.03.2020, respectively. However, the IRP was appointed on 31.10.2019, prior to these dates. Consequently, the account was blocked due to the order issued by the NCLT, and this cannot be attributed to the account holder. As a result of the NCLT’s order, the authority and control of the account holder over the account ceased to exist.
A coordinate bench of this Court in Govind Prasad Todi & Anr. V. Govt. of NCT of Delhi & Anr. [2023 (6) TMI 534 - DELHI HIGH COURT], quashed the summoning order in similar circumstances, observing that once a moratorium under Section 14 of the IBC is in effect, proceedings under Section 138 of the NI Act against the corporate debtor cannot continue.
It is reiterated that the cheques in question were dishonoured for the reason ‘Drawer Signature to operate account not received’. In view of this Court, the ingredients for constituting the offence punishable under Section 138 of the NI Act occurred post imposition of moratorium. The petitioners herein therefore cannot be held vicariously responsible for dishonour of cheque.
The impugned order along with any consequential proceedings arising therefrom, is quashed - Petition allowed.
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2024 (12) TMI 1229
Seeking declaration of the arrest of the petitioner as illegal, arbitrary and void - serious accusations of mental, physical, and sexual abuse against the petitioner and his parents, implicating them in acts of coercion and complicity - whether the grounds for the petitioner’s arrest were duly communicated in compliance with Section 50 of the Cr.P.C. and the Supreme Court's judgment in Pravir Purkayastha [2024 (5) TMI 1104 - SUPREME COURT]?
HELD THAT:- The Courts have time and again deprecated the practice of filling up columns in proforma indicating the formal “reasons” for which the accused was being arrested. It is also pertinent to note that Section 50 Cr. P.C. uses the word “forthwith.” which implies that “grounds for such arrest” have to be communicated at the time of the arrest. This requirement is designed to ensure that the arrested individual is promptly made aware of the reasons for their detention, thereby safeguarding their legal rights.
Bare perusal of the judgments of Joginder Kumar [1994 (4) TMI 385 - SUPREME COURT] and Siddharth [2021 (8) TMI 977 - SUPREME COURT] makes it clear that the Indian Supreme Court has always been very sensitive and conscious about the individual’s rights. The jurisprudence which is being evolved is that the police may not arrest a person only because it’s permissible, the arrest should be justified also and must have grounds of arrest communicated forthwith.
It is a settled proposition that the absence of specific grounds of arrest violates statutory and constitutional rights under Section 50 of Cr.P.C. and Article 22(1) of the Constitution. Any person has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as this information would be the only effective means for the arrested person to consult his advocate; oppose the police custody remand and to seek bail.
It is no longer res integra that grounds of arrest must be communicated in writing to the arrested individual expeditiously. Providing the grounds of arrest to the person being arrested is of utmost sanctity and significance. This information serves as the fundamental basis for the arrested individual to seek legal advice, challenge the remand, and apply for bail - In the context of present case, it is pertinent to mention that Section 50 Cr. P.C. uses the word “forthwith”. The dictionary meaning of the word “forthwith” as defined in the Shorter Oxford English dictionary on historical principles, fifth edition, volume - 01 A-M is (1) Along with, at the same time; and (2) Immediately, at one, without delay.
The court makes it clear that the present order been passed for release of the petitioner on the technical non-compliance of Section 50 Cr.P.C. This court has not gone into merits of the case. The prosecution/victim shall all the necessary liberties to proceed with the investigation and take all the steps for smooth investigation of the case in accordance with law. This court has examined facts of this case only in perspective of Section 50 Cr.P.C., which is akin to Section 47 of BNSS, 2024.
The present petition along with pending applications stands disposed of.
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2024 (12) TMI 1186
Whether the High Court is legally correct in interfering with and setting aside the same and discharging the respondent - Prevention of Corruption - Disproportionate income - Submission of copy of ITR and other information before the High Court without disclosing the same before the trial court - framing of charge u/s 109 of the Indian Penal Code, 1860 read with Section 13(1)(e) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 - HELD THAT:- Taking note of the fact that in the case on hand, the High Court set aside the charge framed against the respondent while exercising the revisional power, it is relevant to refer to the decision in MINAKSHI BALA VERSUS SUDHIR KUMAR AND ORS. [1994 (5) TMI 287 - SUPREME COURT]. This Court on the question of quashing of charge by the High Court held that 'once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course.'
A perusal of the impugned judgment would reveal the nature of the exercise undertaken for passing the impugned judgment. In fact, the aforesaid observation was made after going through the documents filed by the respondent before the High Court. In this context, it is also to be noted that the High Court has also referred to the contentions of the respondent, including the one that for purchasing land at Bhubaneswar, she had borrowed an amount of Rs.2.5 lakhs from her father. After such exercise, it was held by the High Court that there is no clinching material showing that the appellant abetted her husband or made any conspiracy or instigated him in the alleged acquisition of disproportionate assets. This observation itself would go against the very scope of Section 239, Cr. P.C. as at the stage of consideration of a petition for discharge what is to be considered whether there is a ‘prima facie’ case and certainly, the endeavour cannot be to find whether ‘clinching’ materials are there or not. In the common parlance the word ‘clinch’ means ‘point’ or circumstance that settles the issue.
There are no hesitation to hold that such meticulous consideration for presence or absence of clinching material is beyond the scope of power of the Court while considering the question of discharge under Section 239, Cr. P.C. as also while considering the question of quashing of charge framed by the Trial Court, while exercising the revisional jurisdiction.
The judgment under challenge in the case on hand cannot stand the scrutiny. The High Court has clearly erred in its approach and exercise of revisional jurisdiction in quashing the charge framed by the Trial Court upon finding a prima facie case, and also in discharging the respondent – Smt. Pratima Behera.
The impugned judgment dated 31.01.2017 in Criminal Revision No.381 of 2016 is set aside - appeal allowed.
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2024 (12) TMI 1129
Dismissal of the application for discharge u/s 227 of the Cr.P.C. - commission of offences like supply of narcotics - whether the dismissal of the application for discharge filed by the appellant calls for interference in view of the nature of the charge framed against him and the materials on record to support the same? - HELD THAT:- The alleged offence is consumption of narcotic drug or psychotropic substance other than those specified in or under clause (a) of Section 27, NDPS Act, and therefore, the question is whether any material is available to charge the appellant thereunder. The contention of the appellant is that he has been arraigned as accused No.13 based on the confession statement of co-accused viz., accused No.1. Certainly, in the absence of any other material on record to connect the appellant with the crime, the confession statement of the co-accused by itself cannot be the reason for his implication in the crime.
This view has been fortified by the law laid down in Suresh Budharmal Kalani v. State of Maharashtra [1998 (9) TMI 656 - SUPREME COURT], wherein it was stated that a co-accused’s confession containing incriminating matter against a person would not by itself suffice to frame charge against him. The materials on record would reveal that the investigating agency had not subjected him to medical examination and instead, going by complaint Witness No.23, he smelt the accused.
The sole material available against the appellant is the confession statement of the co-accused viz., accused No.1, which undoubtedly cannot translate into admissible evidence at the stage of trial and against the appellant. When that be the position, how can it be said that a prima facie case is made out to make the appellant to stand the trial. There can be no doubt with respect to the position that standing the trial is an ordeal and, therefore, in a case where there is no material at all which could be translated into evidence at the trial stage it would be a miscarriage of justice to make the person concerned to stand the trial.
In view of the settled position of law stated and reiterated by this Court, the impugned judgment is liable to be interfered with and the appeal is liable to be allowed - Appeal allowed.
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2024 (12) TMI 1128
Validity and conditions of the oral gift executed in 1953 - gift for past services - onerous gifts - Applicability of the Transfer of Property Act, 1882, to the case - delay in filing suit - HELD THAT:- As far back as 1870, the Privy Council in Forbes v. Meer Mahomed Tuquee, had an occasion to consider broadly a similar case, where the appellant/plaintiff sought resumption of land granted to the defendants. The land was originally granted on the condition of rendering services, which were to keep off the incursion of wild elephants and attend to the safety of tenants in nearby areas. It was the appellants case that since the services are not required any more as the incursion of elephants has itself ceased, the land should revert to him as part of their zamindari. Lower Court decreed the suit in favour of the plaintiff on the grounds, inter alia, that since the defendants therein have ceased to render the services, the land must revert to the plaintiff therein. This decree of the lower court was reversed by the High Court and the matter finally reached the Privy Council where defendants/grantees argued that they had rendered the services till they were required to do so and since the elephant incursion has stopped on its own, they are no longer bound by the condition.
Similarly in the present case, the gift was for past services but even if it is assumed that it was for some past and some future services, there was no occasion for the defendants to render the services as the appellants had left the village and now, when defendants have been enjoying peaceful possession of land for long, resumption of land in favour of appellants will not be justified. The defendants had produced their witness DW-1 before the Court who gave the evidence that the plaintiffs had left the village long ago, immediately after the death of the Donor, which would be only a few years after the gift deed was executed in 1953 and therefore, there was no question of rendering any further service.
On a perusal of the material on record, both the plaint and PW-1’s deposition are conspicuously silent regarding any specific instances where services were denied by the defendants or their predecessors-in-interest. There was only a vague and conclusory allegation that services have been refused, without any evidence in support of the same.
Now all conditions for a valid gift deed were in existence when it was made on 13.12.1953. The subject matter of transfer was an immovable property (land), and it was without any consideration. There was also an acceptance of this gift deed by the donees, when the donor was alive, as possession of this land was given the very same day to the donees and this undisputed fact is on record - Under TPA a valid gift can be made without giving immediate possession to the donee as has been held by this Court in Renikuntla Rajamma v. K. Sarwanamma [2014 (7) TMI 1284 - SUPREME COURT] where it was held that section 123 of TPA supersedes Hindu Law and delivery of possession is not an essential requirement for the gift to be valid under provisions of TPA.
Section 127 of TPA, which permits onerous gifts, was not in force in present day Haryana which was earlier part of Punjab, as TPA was not applicable there. Nor can we say that such a condition being based on equity, justice & good conscience can be read into the gift deed as a valid condition - The stipulated condition of “services” and the continuation of the rendering of such services has to be read in the context when the deed was executed. Thus, services shall be understood only as ‘past services’ rendered, or at most, the services which had to be rendered by the original donees to the original donor during his lifetime.
There are no doubt that the plaintiffs had absolutely no case. Hence, the impugned judgment calls for no interference - appeal dismissed.
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2024 (12) TMI 1127
Civil dispute or criminal offence? - petitioner expresses a grievance that in the absence of any order of stay passed by the High Court, the proceedings against the petitioner which continued have reached the stage of charges being framed, thereby effectively rendering the petition before the High Court infructuous - HELD THAT:- The exact reason is not known as to why the learned Judge of the High Court, despite lapse of 14 (fourteen) months since judgment was reserved, could not deliver the judgment and dispose of the petition one way or the other.
Be that as it may, without expressing any further comment on the matter of keeping a reserved judgment pending for 14 (fourteen) months and then not delivering the same, we request the roster bench of the High Court to dispose of the petition in accordance with law as early as possible, preferably within three months from date upon hearing all the parties. Should there be any lack of cooperation from any party, the High Court may proceed according to law.
Till such time, the matter is considered next by the High Court, there shall be stay of proceedings before the trial court, i.e., the court of the Additional Chief Judicial Magistrate-IV, Varanasi, in Case No. 330 of 2019 - appeal disposed off.
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2024 (12) TMI 1090
Dishonor of Cheque - Seeking quashment of summoning orders - crux of the contention is that the complaint lacks the mandatorily required averment to maintain a complaint for commission of offence under Section 138 of the NI Act - HELD THAT:- The law enunciated in the decision in Ashok Shewakramani’s case [2023 (8) TMI 599 - SUPREME COURT] is that to maintain a complaint and to frame a charge under Section 138 of the NI Act, there must be a specific averment against the person concerned that he was in-charge of, and responsible for the company concerned in the matter of conduct of its business. This position is now well settled and is being followed with alacrity.
Though, the learned counsel appearing for the second-respondent in all these cases, took pains to convince that the complaint concerned carried necessary averments required statutorily to maintain them however, on perusing the said complaints, there are no hesitation to hold that the aforesaid mandatorily required averments to attract an offence under Section 138 of the NI Act are conspicuously absent in all the complaint(s). To make the appellant to stand the trial, in such circumstances, would be nothing but abuse of the process of the Court. When that be the position, they are liable to be set aside in the light of Ashok Shewakramani’s case.
The appellant has made out a case warranting quashment of the common order - appeal allowed.
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2024 (12) TMI 1089
Challenge to judgment of conviction for offence under Section 138 of the Negotiable Instruments Act, 1881 - compounding of offences - whether this Court can accept Consent Terms filed by parties to put an end to the lis between the parties and grant relief of compounding of the offence as a sequitur thereto and on what terms?
HELD THAT:- In the backdrop of the provisions of Cr.P.C. and more specifically when present cases emanate from a conviction under Section 138 of the N.I. Act, the next most relevant statutory provision which comes to the aid of parties and permits them to make Application for seeking compounding of the offence is Section 147 of N.I. Act. Section 147 provides for offences to be compoundable. It was introduced by the Amendment Act 55 of 2002 in the statute. It starts with a non-obstante clause and states that notwithstanding anything contained in the Cr.P.C., every offence punishable under the N.I. Act shall be compoundable.
There is one more statutory provision which is required to be quoted which is utilised by parties to compromise and get Consent Terms accepted by Court and seek compounding of the offence. It is seen that the High Court Legal Services Committee receives Applications in various categories such as Civil Appeals, Family Court Appeals, Criminal Revisions, First Appeal (MACT) and Execution Petitions of Arbitral Award - it emerges that when the Lok Adalat makes an Award on the basis of a settlement or compromise arrived at between the parties, it proceeds to dispose of the case on the basis of the said Compromise / Consent Terms / Settlement which necessarily entails taking on record the Consent Terms and setting aside of the conviction and sentence, resultantly compounding of the offence.
The provisions of Sections 397, 401 and 320 of Cr.P.C. read alongwith Section 147 of N.I. Act would without doubt enable this Court to utilise its discretion in the given facts and circumstances of the present cases to accept the Consent Terms / Compromise even at this stage much belatedly after conviction. There can be no bar or impediment on this Court exercising its Revisional power alongwith its discretionary power under Section 401 of Cr.P.C. readwith the inherent powers of the High Court under Section 482 of Cr.P.C. to take on record the compromise arrived at between parties in matters which are compoundable having regard to the provisions of Section 147 of N.I. Act.
There are no doubt in coming to the conclusion that in view of the extant power under Section 397 of Cr.P.C., if parties approach the Court with Compromise / Settlement / Consent Terms, the same can be accepted, Applicant – Accused can be allowed to compound the offence and the conviction can be set aside.
Application disposed off.
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2024 (12) TMI 1016
Recovery initiation proceedings for the alleged sums due from the Rice Millers as public demand - initiation of recovery proceedings under the Act against the Rice Millers as the nodal agency of the State Government - adherence of principles of natural justice or not - availing alternate statutory remedies to challenge the recovery certificate - Procurement of Custom Milled Rice (CMR) for the procurement year 2011-12 in the State of Bihar.
Whether the recovery by the Civil Supplies Corporation qualifies as a ‘public demand’ under the Act and the Rules? - HELD THAT:- The definition of ‘public demand’ under section 3(6) is broad and inclusive. It incorporates any arrears mentioned in Schedule I and allows for recovery of such arrears under the Act. Clause 8-A further clarifies that any loan or advance payable to the State Government, its departments, or officials constitutes a public demand. The provision uses broad language, such as “any loan” and “anybody whatsoever,” indicating the legislative intent to create an all-encompassing framework for recovery. Clause 15 additionally specifies that debts owed to certain banks and statutory bodies also qualify as public demands, provided that the liability is acknowledged in writing.
As held by the Full Bench of the Patna High Court in Ram Chandra Singh [1986 (11) TMI 394 - PATNA HIGH COURT], the term ‘public demand’ is of wide amplitude and encompasses all arrears or dues explicitly mentioned or implied in Schedule I. The deliberate legislative design of section 3(6) and Schedule I reinforces the inclusive scope of the term.
Upon examination of admitted circumstances and the alleged default in delivery of CMR, it is unable to subscribe to the view taken by the Learned Single Judge on the existence of jurisdictional facts. A cause of action is stated to be a bundle of facts set out in the plaint. Similarly, jurisdictional facts are determined by the totality of circumstances in a given case. It is as simple as not omitting from consideration what is obvious. Likewise, a relevant circumstance, even if obfuscated, is not omitted from consideration while deciding a jurisdictional fact. Jurisdictional facts consist of a sequence of events or a bundle of circumstances. The relevant circumstances are determined on a case-to-case basis.
Whether the Civil Supplies Corporation can initiate recovery proceedings under the Act against the Rice Millers as the nodal agency of the State Government? - HELD THAT:- The argument that the absence of a specific clause in the agreement authorising recovery under the Act, thus negating the jurisdiction of the certificate officer, is untenable. The Act itself provides a comprehensive framework for the recovery of public demands. The nature of the transaction, the public interest involved, and the role of the Civil Supplies Corporation as the State’s nodal agency allows for the initiation of recovery proceedings before the Certificate Officer.
The finding in the impugned judgement that the initiation of proceedings under the Act by the Civil Supplies Corporation, i.e., as the nodal agency of the state government upheld. The unaccounted deposit of rice at the depots of FCI certainly comes within the fold of public demand of the state government under section 3(6) of the Act. Therefore, the proceedings under the Act are maintainable before the certificate officer. Further, the jurisdictional fact on the initiation of recovery proceedings under the Act is available and legal - The impugned judgement correctly determined that the recovery proceedings initiated by the Civil Supplies Corporation were valid and justified. The court has appreciated the facts of the case and applied the law correctly. The nature of the transaction between the State Government and the Rice Millers, involving the procurement, milling, and distribution of public grain, clearly falls within the ambit of “public demand” as defined in the Act. The certificate officer’s jurisdiction to initiate recovery proceedings is thus established.
Whether the procedural safeguards under the Act and principles of natural justice have been adhered to during certificate proceedings? - HELD THAT:- The initiation is not in accordance with the procedure stipulated under the Act, the procedure prescribed by the Act is not followed, and the principles of natural justice are violated.
Whether the Rice Millers can avail alternate statutory remedies to challenge the recovery certificate? - HELD THAT:- The Rice Millers invoked the writ remedy by raising a jurisdictional fact against realising the sums as a public demand under the Act. As a writ court or in an appeal under Article 136, we are not examining the contentions on alleged procedural deviations. It is left open to the respective Rice Millers to avail a statutory remedy as may be available under the Act. For availing a statutory remedy, we grant thirty days from today to the Rice Millers.
In the event of a Rice Miller availing a statutory remedy as permitted by this Judgment, the said authority shall entertain the case without reference to the delay and the period of limitation in availing a remedy before the said authority.
Appeal dismissed.
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2024 (12) TMI 1015
Calculation of post award interest - to be calculated on the principal sum adjudged or would it be calculated on the principal sum plus interest on the principal sum which has accrued from the date of cause of action to date of passing of award, as under the new 1996 Act, award is enforced as a decree of the court? - Applicability of Section 31(7) of the Arbitration and Conciliation Act, 1996 - Jurisdiction of the Arbitrator post-award for issuing clarification - HELD THAT:- From an analysis of Section 31(7)(a) of the 1996 Act, which provides for pre-award interest, it is seen that the provision begins with the expression unless otherwise agreed by the parties, thereby highlighting the legislative stance that parties possess the autonomy to determine pre-award interest on the payment of money awarded by the arbitral tribunal. However, no such discretion is available to the parties under Section 31(7)(b) of the 1996 Act though such discretion is available to the arbitral tribunal.
Natural corollary to the analysis would be that the ‘sum’ so awarded by the arbitral tribunal which may include interest from the date when the cause of action arose to the date of the award, would carry further interest of 18 percent from the date of the award to the date of payment unless the arbitral award otherwise directs. Thus, the legislative intent is that the awarded sum whether inclusive of interest or not, in case included, then from the date of cause of action to the date of award, would carry further interest from the date of the award to the date of payment.
Going by the provisions contained in Section 31(7) of the 1996 Act, it is evident that an arbitral tribunal has the power to grant (i) pre-award (ii) pendente lite (iii) post-award interest. Intention behind awarding pre-award interest is primarily to compensate the claimant for the pecuniary loss suffered from the time the cause of action arose till passing of the arbitral award - It primarily acts as a disincentive to the award debtor not to delay payment of the arbitral amount to the award holder.
Clause (a) of sub-Section (7) of Section 31 provides that the arbitral tribunal may include interest while making an award for payment of money in the sum for which the award is made and as per clause (b), the sum so directed to be made by the award shall carry interest at a certain rate for the post-award period. The purpose for enacting such a provision is to encourage early payment of the awarded sum and to discourage delay. Therefore, the ‘sum’ directed to be paid by the arbitral award under clause (b) of sub-Section (7) of Section 31 of the 1996 Act is inclusive of interest pendente lite.
The appellant had participated in the clarificatory proceeding before the learned Arbitrator taking the stand that no clarification as sought for was required on merit.
Learned Single Judge, firstly, held that it was no longer open to examine the question as to whether the respondent had any right to approach the learned Arbitrator to seek clarification or whether the learned Arbitrator had become functus officio since the Division Bench had expressly permitted the respondent to seek clarification from the learned Arbitrator which decision was not interfered with by this Court. Thereafter, the decision of the Single Bench setting aside the clarification of the learned Arbitrator which was affirmed by the Division Bench were set aside by this Court in the civil appeal of the respondent with liberty to the respondent to seek execution as per the law laid down in M/s. Hyder Consulting (UK) Ltd. Secondly, learned Single Judge clarified that the respondent would be entitled to post-award interest not only on the claims as awarded but also on the pre-award interest as well as on the interest pendente lite. The quantum of pre-award interest and the interest pendente lite would be calculated and included in the amount awarded i.e. the ‘sum’ and the post-award interest would run on the said ‘sum’ i.e. principal amount plus interest (preaward interest plus interest pendente lite).
The issue raised by the appellant in the present proceeding i.e. learned Arbitrator had become functus officio and therefore had no jurisdiction to issue the clarification, was also raised in the miscellaneous application filed by the appellant before this Court seeking clarification of the order dated 12.03.2015. While dismissing the miscellaneous application, no leave was granted by this Court to agitate the aforesaid issue in any other proceeding. Therefore, viewed from this perspective also, it is not open to the appellant to raise the aforesaid issue again in the present proceeding.
The clarification sought for and issued by the learned Arbitrator would be covered by the expression unless another period of time has been agreed upon by the parties appearing in Section 33 (1) of the 1996 Act. This is a case where court had permitted the respondent to seek clarification from the learned Arbitrator beyond the initial period of 30 days whereafter the appellant fully participated in the clarificatory proceeding. Therefore, the present case would be covered by the above expression. In the circumstances, contention of the appellant that the learned Arbitrator had become functus officio and therefore lacked jurisdiction to issue the clarification cannot be accepted and is thus rejected.
There are no error or infirmity in the impugned order passed by the Division Bench of the High Court - the appeal lacks merit and is, accordingly, dismissed.
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2024 (12) TMI 1014
Interpretation of insurance policy conditions regarding vehicle damage coverage and liability of the insurer in case of an accident - delay in intimation.
Challenge to order by the National Consumer Disputes Redressal Commission that reduced the insurance amount payable to the appellant - HELD THAT:- On a careful scrutiny of the records of the case, it is seen that both the District and State Commissions had reached a concurrent finding about whether the delay in intimation to the respondent was justified. Both held that this delay was justifiable and not fatal to the insurance claim. Both the courts had also reached the finding that the damage took place in two phases: (a) once when the vehicle fell into a ditch and capsized; and (b) when the short-circuiting took place due to the car remaining in that state.
The National Commission could not have interfered with pure finding of fact arrived at by the District and State Commissions while exercising revisional jurisdiction. It is unclear as to how the National Commission perceived that the State Commission exercised jurisdiction not vested in it or has failed to exercise jurisdiction vested in. There is nothing to indicate in the decision of the National Commission as to whether there is any illegality in the approach adopted by the State Commission or that it had acted with material irregularity.
The other ground that the respondent has raised is that the survey report was disregarded by the District and State Commissions but the National Commission has correctly examined and relied on it. This submission cannot be accepted, since the State Commission had examined the survey report in detail and in fact found it to be lacking. It stated that the surveyor’s claim that the vehicle was left unattended cannot be accepted since the appellant had justifiable reasons for the same. Furthermore, the finding of the surveyor that the short-circuiting was caused by the appellant himself was not based on any evidence.
In the present case, no miscarriage of justice is made out by the respondent. The State Commission has addressed all the issues raised before it and found the delay in intimation to be reasonable and that the insurance claim is payable on the damage due to the accident as well as the short-circuiting. The State Commission also examined the genuineness of the accident’s claim by considering the police report and discarded the surveyor’s report for lack of evidence. It then directed the respondent to pay the entire insured sum giving its reasons for the same. Hence, the appellant is correct in stating that the National Commission has transgressed its jurisdiction by interefering with the State Commission’s order.
Delay in intimation - HELD THAT:- Reference made to the decision of this Court in OM PRAKASH VERSUS RELIANCE GENERAL INSURANCE AND ORS. [2017 (10) TMI 1663 - SUPREME COURT] where it was held that the delay may be condoned if it is properly explained.
The impugned order set aside - appeal allowed.
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2024 (12) TMI 1013
Declination to interfere in the allotment of land by the RespondentState to Medinova Regal Cooperative Housing Society - Eligibility and composition changes of MRCHS - HELD THAT:- MRCHS’ proposed members in their initial application were subsequently changed thrice, in order to somehow meet the eligibility criteria. When MRCHS replied to the Letter of Intent on 28.02.2003, the proposed society had removed 5 of its members out of the list of eleven earlier submitted alongwith their application. These names were deleted on the grounds that they were ineligible. Had this been the case, why were they included in the first place? The only purpose therefore why these names were shown were because they were all doctors of Tata Memorial Centre on whose names ostensibly MRCHS was trying to get the allotment made.
It was even noted by the Revenue & Forest Department, Govt. of Maharashtra that the main object behind sanctioning of the plot of land to MRHCS i.e., to provide housing to the doctors working at Tata Memorial Hospital in close proximity to their workplace can no longer be achieved, due to changes in the composition of the society.
In this case as well, no documents have been placed on record by MRCHS or the State to show that when the Letter of Intent was issued in their favour, more plots were unavailable in the layout as prepared under Rule 24 - MRCHS had applied for allotment of a different plot which is also at Village Bandra and part of the same Survey Number and hence at the very least there were more than two plots available for allotment in this layout when the Letter of Intent came to be issued in favour of MRCHS.
In S.V. ASGAONKAR AND ORS. VERSUS THE MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY AND ORS. [2018 (4) TMI 1996 - SUPREME COURT] this Court upheld the dismissal of the appellant society’s writ petition against the finding of ineligibility of its members. It was observed that “the Society was conscious of the fact that eligibility of members has to be seen as on 11122003 that is the date on which letter of intent was issued in pursuance of allotment. The Society having accepted the aforesaid clause of eligibility and accepted the offer of allotment as given by the Authority, it is failed to see that how the eligibility as on 11-12-2003 be permitted to be questioned”. However, in the present case, not only were MRCHS’ proposed members found ineligible, but the society was allowed to change its members frequently, starting from the point when it accepted the Letter of Intent in its favour.
The order of the High Court of Bombay set aside - appeal allowed.
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