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2024 (12) TMI 1012
Challenge to order taking cognizance under Section 138 of the Negotiable Instruments Act, 1881 - rejection of petition seeking dismissal of the complaint case on the ground of pendency of a civil suit filed by the accused - quashment of the entire proceeding - rebuttal of presumption - HELD THAT:- It is well settled that the presumption enables the holder of the cheque to show a prima-facie case and such presumption shall survive before the trial court only when the contrary not having proved to the effect that the cheques in question were not issued for a consideration or discharge of any existing or future debt or liability - In the case in hand, neither the signature nor the issuance of the cheque has been disputed. The entire defence as recorded hereinabove can be established or the plea taken can be established by adducing rebuttal evidence inasmuch accused can place reliance on the material adduced by the complainant to rebut that actual liability was not disclosed and it is vague.
It is by now well settled that the accused can undoubtedly place reliance not only on the complaint’s lacuna or material but can also adduce positive evidence and take his defence under Section 313 Cr.P.C. to rebut the presumption. The pendency of the civil case, with the allegation that the defective machines were delivered, that the complainant is not liable to pay in view of deficiency etc. can be matter of such defence of the accused.
In the case in hand, this court does not find any of such prerequisite after going through the complaint. In the case in hand, this court is of the unhesitant view that the necessary factual foundation to take cognizance under Section 138 of the NI Act has been laid in the complaint. This court is also of the unhesitant opinion that merely for the reason that the detail of enforceable debt has not been stated in the complaint, the complaint cannot be quashed, more particularly, when a specific statement have been made at paragraph 4,5 and 6 as regards factum of purchase of mobile stone crusher equipments, issuance of cheque for discharge of legally enforceable liability, the amount of the cheque and the total amount of the alleged due. It cannot also be said that the complaint is bereft of even the basic facts, which are absolutely necessary for making an offence under Section 138 of the NI Act.
This court finds no merit in this petition to persuade it to exercise its power under Section 482 Cr.P.C. to quash the proceeding of Complaint Case No. 208C/2016 under Section 138 of the NI Act - Accordingly, the present criminal petition stands dismissed.
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2024 (12) TMI 1011
Seeking condonation of delay of 404 days in filing the appeal - HELD THAT:- It is clear that though the judgment of the learned Single Judge was pronounced on 27.02.2023, but the file kept on moving from 03.04.2023 till 30.04.2024 from table to table and from officer to officer. It is not as if the applicant was not aware about the period for filing the Letters Patent Appeal, yet a delay of 404 days occurred in filing the appeal from the date of the order and receiving of certified copy of the Judgment.
It thus appears that the applicant has adopted a very lethargic attitude in the matter of filing the Letters Patent Appeal and has been negligent in that regard.
Looking to the overall facts and circumstances of the case and the stand/explanation given by the appellant, it is opined that sufficient cause has not been shown to condone the huge period of delay in filing the appeal; accordingly, this application is dismissed.
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2024 (12) TMI 935
Requirement to take cognizance of the charge sheets against the respondents without the grant of sanction for prosecution under Section 197 CrPC. - offence punishable under Sections 147, 148, 149, 307, 302, 201 and 120-B respectively of the Indian Penal Code, 1860 - offence or the act alleged to have been committed by the respondent nos. 1, 3, 4 and 5 respectively could be said to have been done “while acting or purporting to act in the discharge of official duty” or not - HELD THAT:- The applicability of Section 197 CrPC has been the subject of judicial interpretation in several cases. One of the first and foremost case laws which examined the pith of the expression “any act done or purporting to be done” was the Federal Court decision in Dr. Hori Ram Singh v. The Crown [1939 (4) TMI 22 - FEDERAL COURT]. Their Lordships were called upon to consider the applicability of Section 270 of the Government of India Act, 1935 which albeit not identical, but was similar to Section 197 CrPC. The Court held that while the offence under Section 409 IPC as regards the criminal breach of trust by a public servant would not require consent from the Governor for it cannot be done or purported to be done in the execution of his duty, yet the offence under Section 477A IPC as regards the falsification of accounts would require the Governor’s consent.
The Judicial Committee of the Privy Council in Gill and Another v. The King [1948 (2) TMI 23 - PRIVY COUNCIL] was faced with deciding whether sanction was required under Section 197 CrPC for the prosecution of a public servant charged with the offence of bribery and/or conspiracy to take bribes. The Court was of the opinion that it was impossible to distinguish or differentiate between S. 270 of the Government of India Act, 1935 and S. 197 CrPC, at least in relation to offences of this character.
In Albert West Meads v. The King [1948 (4) TMI 10 - BOMBAY HIGH COURT], the Privy Council echoed the view taken in Gill (supra) and held that the appellant in that case could not justify that the act of fraudulently misapplying money entrusted to his care as a public servant was an act done by him by virtue of his office.
The legal position that emerges from a conspectus of all the decisions referred to above is that it is not possible to carve out one universal rule that can be uniformly applied to the multivarious facts and circumstances in the context of which the protection under Section 197 CrPC is sought for. Any attempt to lay down such a homogenous standard would create unnecessary rigidity as regards the scope of application of this provision.
The object behind the enactment of Section 197 CrPC is to protect responsible public servants against institution of possibly false or vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act in their official capacity. It is to ensure that the public servants are not prosecuted for anything which is done by them in the discharge of their official duties, without any reasonable cause - The expression “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” in Section 197 CrPC must neither be construed narrowly nor widely and the correct approach would be to strike a balance between the two extremes. The section should be construed strictly to the extent that its operation is limited only to those acts which are discharged in the “course of duty”.
It follows that when a police official is said to have lodged a false case, he cannot claim that sanction for prosecution under Section 197 CrPC was required since it can be no part of the official duty of a public official to lodge a bogus case and fabricate evidence or documents in connection with the same. On examining the quality of the act, it is evident that there exists no reasonable or rational nexus between such an act and the duties assigned to the public servant for the claim that it was done or purported to be done in the discharge of his official duty. The mere fact that an opportunity to register a false case was furnished by the official duty would certainly not be sufficient to apply Section 197 CrPC - any act or offence committed by the respondent no. 1 in the present case can safely be said to have been outside the scope of his official duty which obviates the question of sanction for his prosecution.
The Trial Court is directed to proceed with the trial and at any stage of the trial if the evidence suggests that the acts complained of were indeed done or purported to be done in the discharge of official duty by respondent nos. 3, 4 and 5 respectively or that the FIR registered by them was not bogus, the trial may be stayed for want of sanction. Therefore, the question of sanction only qua respondent nos. 3, 4 and 5 respectively is left open to be appropriately decided by the Trial Court at a suitable stage, in accordance with the law, without being prejudiced by any of the observations made in this order as well as in the order passed by the High Court.
The impugned order passed by the High Court is set aside - Appeal allowed.
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2024 (12) TMI 880
Cancellation of bail granted - criminal conspiracy - crossborder narco-terrorism involving a huge recovery of 500 kgs of heroin, which was stated to have been smuggled into India through Gujarat and then into Punjab in a meticulously planned manner - scheduled offences - Legality of the Central Government's orders transferring investigation to the National Investigation Agency (NIA) - can the NIA investigate any other accused person who, although not being investigated for any Scheduled Offences could be investigated by NIA because there exists a link between the two namely, Scheduled and non-scheduled offences, thereby connecting every co-accused?
HELD THAT:- On a plain reading of Section 8, it is clear that the said Section has to be read in continuation of what has been stated in subsection (5) of Section 6 of the NIA Act. Once the Central Government directs the NIA to investigate a Scheduled Offence and during the course of such investigation of a Scheduled Offence against an accused, it becomes necessary for the NIA to also investigate any other offence which the said accused is alleged to have committed, then such offence could also be investigated provided that other offence to be investigated is connected with the Scheduled Offence.
The expression “the accused” in Section 8 of the NIA Act needs to be interpreted contextually. Learned senior counsel for the petitioner submitted that the said expression has to be read narrowly and as per its plain meaning as referring to only “the accused” in respect of whom a Scheduled Offence is being investigated by the NIA and if such an accused has committed any other offence which is connected to the Scheduled Offence then such other offence could also be investigated by the NIA provided there is a connection with the Scheduled Offence - The expression “Agency may also investigate any other offence which the accused is alleged to have committed” has no doubt to be read with the rigour of “if the offence is connected with the Scheduled Offence”. In other words, if any other offence is connected with the Scheduled Offence, then the NIA may investigate such other offence which the accused is alleged to have committed provided there is a connection of such other offence with the Scheduled Offence.
Whether, the expression “the accused” in Section 8 of the NIA Act has to refer to only the accused in respect of whom a Scheduled Offence is being investigated or it could include any other accused whose name would emerge during the course of investigation of a Scheduled Offence and who has committed an offence which has a connection with the Scheduled Offence? - HELD THAT:- The nexus or connection between any other offence and the Scheduled Offence is of critical importance and must be present in order to enable the NIA to investigate any other offence committed by an accused in connection with the Scheduled Offence. The connection between a Scheduled Offence and any other offence being established would enable the NIA to investigate the accused of committing any other offence which is connected with the Scheduled Offence. Once there is such a connection between a Scheduled Offence and a non-scheduled offence then, for all practical purposes the non-scheduled offence would come within the connection of a Scheduled Offence. Therefore, it is held that the accused who may have committed a non-scheduled offence having a connection with a Scheduled Offence can be investigated by the NIA in respect of a non-scheduled offence.
It is reiterated that, while investigating the accused regarding Scheduled Offences, if the NIA submits a report about some other accused who may have also committed certain offences connected with the Scheduled Offences under investigation then, the Central Government on a consideration of such a report may exercise suo motu powers and direct the NIA to also investigate the other accused also provided the offences alleged against the other accused are offences, having a connection with the Scheduled Offence already under investigation - on the aforesaid basis NIA would be enabled to also carry out an investigation of any other accused who has committed an offence connected with the Scheduled Offence already being investigated. This would be in the realm of a joint investigation into Scheduled Offences which may have occurred in different parts of the country but having a connection with other offences also.
The offences registered in FIR No.1/2018 dated 12.08.2018 at PS ATS, Ahmedabad, Gujarat (Gujarat case) and the offences registered against the petitioner herein under FIR No.20/2020 dated 29.01.2020 and under FIR No.23/2020 dated 31.01.2020 all being under the NDPS Act and in view of the connectedness of the offence under NDPS Act with the Scheduled Offence in Gujarat FIR No.01/2018 in respect of which the Central Government was of the opinion that the provisions of Sections 17 and 18 of the UAPA (Scheduled Offences under the NIA Act) were also attracted as a result, the Central Government directed the NIA to investigate into the Scheduled Offences (Sections 17 and 18 of the UAPA) on the basis of the initial order passed under sub-section (5) of Section 6 of the NIA Act on 29.06.2021.
When the NIA was investigating into the Scheduled Offences in the Gujarat case, it forwarded reports to the Central Government in respect of FIR No.23/2020 registered at Police Station STF, District STF Wing, Amritsar, Punjab dated 31.01.2020 and FIR No.20/2020 dated 29.01.2020 registered at PS STF, SAS Nagar, Mohali, Punjab under the provisions of the NDPS Act. On a consideration of the said reports and on the strength of Section 8 of the NIA Act, the Central Government passed orders to investigate into the offences alleged against the petitioner herein on the premise that those offences have a connection with the Scheduled Offences.
The NIA was justified in seeking cancellation of bail granted to the petitioner herein by the High Court in respect of the offences alleged against him under the provisions of the NIA Act in the State of Punjab. This is because the said offences are now being investigated by the NIA and there is also transfer of the trial from the concerned Special Court in the State of Punjab to the Special Court in the State of Gujarat, to be tried along with Scheduled Offences under Sections 17 and 18 of the UAPA as per Section 14 of the NIA Act.
Therefore, the special leave petition is also liable to be dismissed and is dismissed. The interim relief granted to the petitioner vide order dated 07.03.2024 and extended from time to time stands vacated.
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2024 (12) TMI 879
Principles of Constructive res judictata - Seeking to initiate contempt proceedings against the respondents / alleged contemnors for wilful disobedience - Section 2(B) of the Contempt of Court Act, 1971 read with Article(s) 129 and 142(2) of the Constitution - default in repayment of loan - handing over physical possession along with the original title deeds of the Secured Asset to the petitioner herein - clear title to the said property - absence of any registration in accordance with Section 52 of the TPA as amended by the State of Maharashtra renders the lis pendens inapplicable.
Concept of Abuse of Process of Court and Collateral challenge to judgments that have attained finality - HELD THAT:- When the impugned order of the High Court was challenged before this Court in the Main Appeals, the scope of proceedings before us also entailed the issue of validity of the Bank’s actions under the SARFAESI Act. As discussed by us in the foregoing paragraphs of this judgment, that the Borrower for reasons best known to it, never agitated the validity of the proceedings under the SARFAESI Act including the legality of the 9th auction notice. Not once did the Borrower submit either in the course of its arguments or in its written submissions that the very auction process is allegedly illegal and in contravention of the SARFAESI Act.
Since, no challenge had been raised to the measures taken by the Bank under the SARFAESI Act and the 9th auction notice by the Borrower, this Court proceeded to determine only the issue of right of redemption under Section 13 sub-section (8) of the SARFAESI Act. Accordingly, this Court held that under the unamended Section 13(8) of the SARFAESI Act, the right of the borrower to redeem the secured asset was available till the sale or transfer of such secured asset. However, under the amended provisions of Section 13(8) of the SARFAESI Act the right of the borrower to redeem the secured asset would be available only till the date of publication of the notice under Rule 9(1) of the SARFAESI Rules and not till the completion of the sale or transfer of the secured asset in favour of the auction purchaser.
It is material to note that even in the review petition preferred by the Borrower including the application for additional grounds of review therein, the contention of the Borrower in the present contempt petition as to the illegality of the SARFAESI proceedings including the 9th auction or the contravention of the 30 / 15 days statutory period, does not figure. In fact, the Borrower in the review petition did not even lay any challenge to the direction of this Court to issue the sale certificate in the Main Appeals - the Borrower having admittedly failed to even remotely indicate the aforesaid issues to this Court let alone contend it in both the Main Appeals and the review thereof, the only question that now remains to be answered is whether it is permissible for the Borrower to raise it and again litigate the same subsequently either in the present contempt petition or in the S.A. No. 46 of 2022 which is still pending before the DRT.
The ‘Henderson’ Principle as a corollary of Constructive Res - Judicata - HELD THAT:- The ‘Henderson Principle’ is a foundational doctrine in common law that addresses the issue of multiplicity in litigation. It embodies the broader concept of procedural fairness, abuse of process and judicial efficiency by mandating that all claims and issues that could and ought to have been raised in a previous litigation should not be relitigated in subsequent proceedings. The extended form of res-judicata more popularly known as ‘Constructive Res Judicata’ contained in Section 11, Explanation VII of the CPC originates from this principle.
The fundamental policy of the law is that there must be finality to litigation. Multiplicity of litigation benefits not the litigants whose rights have been determined, but those who seek to delay the enforcement of those rights and prevent them from reaching the rightful beneficiaries of the adjudication. The Henderson Principle, in the same manner as the principles underlying res judicata, is intended to ensure that grounds of attack or defence in litigation must be taken in one of the same proceeding. A party which avoids doing so does it at its own peril. In deciding as to whether a matter might have been urged in the earlier proceedings, the court must ask itself as to whether it could have been urged - In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future. The doctrine itself is based on public policy flowing from the age-old legal maxim interest reipublicae ut sit finis litium which means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause.
The ‘Henderson Principle’ is a core component of the broader doctrine of abuse of process, aimed at enthusing in the parties a sense of sanctity towards judicial adjudications and determinations. It ensures that litigants are not subjected to repetitive and vexatious legal challenges. At its core, the principle stipulates that all claims and issues that could and should have been raised in an earlier proceeding are barred from being raised in subsequent litigation, except in exceptional circumstances. This rule not only supports the finality of judgments but also underscores the ideals of judicial propriety and fairness.
Both logic and principle support the approach that the judicial determination of an entire cause of action is in fact the determination of every issue which is fundamental to establishing the entire cause of action. Thus, the assertion that the determination is only on one of the issues is flawed as it is nothing but an indirect way of asserting that the whole judgment is flawed and thereby relitigating the entire cause of action once more. The effect of a judicial determination on an entire cause of action is as if the court had made declarations on each issue fundamental to the ultimate decision.
Applicability of Lis Pendens in the absence of any registration as required under the State Amendment to Section 52 of the TPA - HELD THAT:- As per the Doctrine of lis pendens, nothing new can be introduced during the pendency of a petition and if at all anything new is introduced, the same would also be subject to the final outcome of the petition, which would decide the rights and obligations of the parties - The doctrine of lis pendens is duly recognized in Section 52 of the TPA which states that during the pendency in any court of any suit in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings. The explanation to the provision states that for the purposes of the Section, the pendency of a suit or proceedings shall be deemed to commence from the date of the presentation of the plaint or institution of the proceeding in a Court, and shall continue until the suit or proceeding is disposed by a “final decree or order” and complete satisfaction of the order is obtained, unless it has become unobtainable by reason of the expiry of any period of limitation.
The doctrine of lis pendens, which Section 52 of the TPA encapsulates, bars the transfer of a suit property during the pendency of litigation. The only exception to the principle is when it is transferred under the authority of the court and on terms imposed by it. Where one of the parties to the suit transfers the suit property (or a part of it) to a third-party, the latter is bound by the result of the proceedings even if he did not have notice of the suit or proceeding.
In the present case, it has been canvassed on behalf of the Subsequent Transferee that it is a bona-fide third party purchaser of the Secured Asset since it was neither arrayed as a party to proceedings in the Main Appeals nor issued a notice of the said proceedings either by the petitioner or by the Bank - In Sanjay Verma v. Manik Roy [2006 (12) TMI 559 - SUPREME COURT] this Court held that the principle of lis pendens enshrined in Section 52 of the TPA is not only based on equity, good conscience and justice but is also a principle of public policy and as such no party can claim exemption from the application of this doctrine on the ground of bona fide or good faith.
Since, in the present case the Special Leave Petitions were already instituted and pending before this Court as on 28.08.2023 i.e., the date of execution of the Assignment Agreement for the transfer of the Secured Asset in favour of the Subsequent Transferee, the said Assignment Agreement dated 28.08.2023 and the transfer thereto is beyond a shadow of doubt hit by lis pendens.
The execution of the Assignment Agreement dated 28.08.2023 and the transfer of the Secured Asset in pursuance thereto in favour of the Subsequent Transferee is hit by lis pendens despite the fact that no notice of pendency was registered in terms of the amended Section 52 of the TPA - Section 52 of the TPA does not render transfers affected during the pendency of the suit void but only render such transfers subservient to the rights as may be eventually determined by the court.
Since in the present case, the Assignment Agreement dated 28.08.2023 whereby the Secured Asset was transferred in favour of Greenscape / the Subsequent Transferee herein was effected by the Borrower on the strength of its right of redemption pursuant to the High Court’s impugned order which was ultimately set-aside by this Court in its judgment and order dated 21.09.2023 in the Main Appeals, the same rendered Borrower’s right to transfer the Secured Asset non-est and by extension the Assignment Agreement void.
Whether any contempt is said to have been committed by the respondents herein? - HELD THAT:- The expression or word “wilful” means act or omission which is done voluntarily or intentionally and with the specific intent to do something which the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose - Article 129 of the Constitution declares this Court as a “a court of record” and states that it shall have all the powers of such a court including the power to punish for contempt of itself. The provisions of the Act, 1971 and the Rules framed thereunder form a part of a special statutory jurisdiction that is vested in courts to punish an offending party for its contemptuous conduct.
In Ram Kishan v. Tarun Bajaj & Ors. [2014 (1) TMI 1897 - SUPREME COURT] it was held that the contempt jurisdiction conferred on to the law courts power to punish an offender not only for his wilful disobedience but also for contumacious conduct or obstruction to the majesty of law. It further observed that such power has been conferred for the simple reason that the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined.
Any contumacious conduct of the parties to bypass or nullify the decision of the court or render it ineffective, or to frustrate the proceedings of the court, or to enure any undue advantage therefrom would amount to contempt. Attempts to sidestep the court’s jurisdiction or manipulate the course of litigation through dishonest or obstructive conduct or malign or distort the decision of the courts would inevitably tantamount to contempt sans any prohibitory order or direction to such effect - the mere conduct of parties aimed at frustrating the court proceedings or circumventing its decisions, even without an explicit prohibitory order, constitutes contempt. Such actions interfere with the administration of justice, undermine the respect and authority of the judiciary, and threaten the rule of law.
While the initial acts of the Borrower and the Subsequent Transferee are in violation of this Court’s judgment and order dated 21.09.2023, yet the efforts on their part to take steps and make amends by withdrawing the Special Civil Suit No. 5 of 2024 along with their belated unconditional undertaking to comply with any further order that this Court may deem fit and proper to pass, demonstrates their effort and willingness to purge themselves of their contemptuous conducts.
Circumstances when a sale of property by auction or other means under the SARFAESI Act may be set-aside after its confirmation - HELD THAT:- In LICA (P) Ltd. v. Official Liquidator [1993 (1) TMI 242 - SUPREME COURT] this Court held that the purpose of an open auction is to get the most remunerative price with the highest possible public participation, and as such the courts shall exercise their discretion to interfere where the auction suffers from any fraud or inadequate pricing or underbidding that too with circumspection, keeping in view the facts of each case - This Court in Valji Khimji [2008 (8) TMI 562 - SUPREME COURT] held that once an auction is confirmed the objections to the same should not ordinarily be allowed, except on very limited grounds like fraud as otherwise no auction would ever be complete.
In the present lis, it is not the case of the Borrower herein that the 9th auction conducted by the Bank was a result of any collusion or fraud either at the behest of the Bank or the Successful Auction Purchaser herein. Aside from the lack of any 15-days gap between the notice of sale and the notice of auction, no other illegality has been imputed to the aforesaid auction proceedings. It is also not the case of the Borrower that due to the absence of the aforesaid statutory period, any prejudice was caused or that it was prevented from effectively exercising its rights due to such procedural infirmity. Despite a total of eight auctions being conducted by the Bank from April, 2022 to June, 2023, not once did the Borrower express its desire to redeem the mortgage - given the fact that although the S.A. No. 46 of 2022 was still pending, yet since there was nothing before this Court to doubt the validity of the 9th auction, this Court in the Main Appeals confirmed the sale in favour of the petitioner and brought the auction proceedings to its logical conclusion by directing the issuance of the sale certificate. The Borrower never raised the issue of the validity of the 9th auction notice despite having sufficient opportunities to do so even after the pronouncement of the decision in the Main Appeals, and that such pleas are being raised only after the auction was confirmed in favour of the petitioner, we find no good reason to interfere with the 9th auction conducted by the Bank.
In the present lis, apart from the want of statutory notice period, no other challenge has been laid to the 9th auction proceedings on the ground of it being either collusive, fraudulent or vitiated by inadequate pricing or underbidding, thus, the auction cannot be said to suffer from any fundamental procedural error, and as such does not warrant the interference of this Court, particularly when the plea sought to be raised to challenge the same could have been raised earlier.
The legality and validity of the 9th auction proceedings conducted pursuant to the notice of sale dated 12.06.2022 is upheld. The sale of the Secured Asset to the petitioner is hereby confirmed and the title conferred through the Sale Certificate dated 27.09.2023 is declared to be absolute - The Borrower and the Bank shall immediately take steps for the cancellation of the Release Deed dated 28.08.2023 within a period of one week from the date of pronouncement - Let this matter be notified once again before this Bench after a period of two weeks to report compliance of the aforesaid directions.
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2024 (12) TMI 878
Proceedings initiated against the appellant for the offence punishable under Section 58 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Interpretation of the provisions of the NDPS Act and Cr.P.C. - Good Faith - Violation of Principles of Natural Justice - recovery of opium.
Interpretation of the provisions of the NDPS Act and Cr.P.C. - HELD THAT:- A perusal of sub-section (1) of Section 58 of the NDPS Act would reveal that if any person empowered under Section 42 or Section 43 or Section 44, who, without reasonable ground of suspicion enters or searches, or causes to be entered or searched, any building, conveyance or place, or vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug or psychotropic substance or other article liable to be confiscated under the Act, or of seizing any document or other article liable to be seized under Section 42, Section 43 or Section 44; or vexatiously and unnecessarily detains, searches or arrests any person shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both.
The notice which was given by the learned Special Judge to the appellant and other police officers was for the offence punishable under Sections 58(1) and (2) of the NDPS Act. As such, it could be seen that the proceedings which were initiated by the learned Special Judge against the appellant were for the offence punishable for which the maximum sentence provided in the NDPS Act was up to two years. Section 36-A (5) of the NDPS Act which begins with the nonobstante clause provides that notwithstanding anything contained in the Cr.P.C., the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.
A bench of learned three Judges of this Court in the case of TOFAN SINGH VERSUS STATE OF TAMIL NADU [2020 (11) TMI 55 - SUPREME COURT] was considering a question as to whether officers of departments other than the police, on whom the powers of an officer in charge of a police station under Chapter XIV of the Cr.P.C., have been conferred, are police officers or not within the meaning of Section 25 of the Evidence Act. This Court answered the question that the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
It is clear that the statutory scheme, according to the provisions of Section 36-A(5) of the NDPS Act, prescribes that, for convicting a person under Section 58 of the NDPS Act, he/she must be tried summarily - It is clear that the learned Special Judge could not have conducted the proceedings against the present appellant for the offence punishable under Section 58 of the NDPS Act inasmuch as such proceedings could have been conducted only by a Magistrate. Undisputedly, the procedure as required under Chapter XX i.e. Sections 251 to 256 of the Cr.P.C. has also not been followed.
Good faith - HELD THAT:- Section 69 of the NDPS Act provides immunity to the Central Government, State Government or any officer of the Central or State Government or any other person exercising any powers or discharging any functions or performing any duties under this Act or any rule or order made thereunder from civil or criminal proceedings.
This Court observed that anything done with due care and attention, which is not mala fide, is presumed to have been done in good faith. It has been observed that there should not be personal ill will or malice, no intention to malign and scandalise. It has been observed that good faith and public good are though a question of fact, they are required to be proved by adducing evidence. This Court held that as to whether the performance of duty acting in good faith either done or purported to be done in the exercise of the powers conferred under the relevant provisions can be protected under the immunity clause or not, would depend upon the facts of each case and cannot be a subject matter of any hypothesis. It has been held that for availing such immunity, the act has to be official and not private - It has been held that the presumption of good faith therefore could be dislodged only by cogent and clinching material and so long as such a conclusion was not drawn, a duty in good faith should be presumed to have been done or purported to have been done in exercise of the powers conferred under the statute. It has been held that there has to be material to attribute or impute an unreasonable motive behind an act to take away the immunity clause.
Violation of Principles of Natural Justice - HELD THAT:- The facts in the present case are somewhat similar to the facts which fell for consideration before this Court in the case of State of West Bengal and Others v. Babu Chakraborthy [2004 (9) TMI 606 - SUPREME COURT]. In the said case, the accused persons were convicted for an offence punishable under the NDPS Act. In the appeal preferred by them, while allowing the appeal, the High Court made several strictures and observations against two officers of the West Bengal Police in an IPS Cadre. In the said case also, the allegations against the said officers were with regard to violation of provisions of Section 42 of the NDPS Act.
The learned Special Judge, without even giving notice to her, only on the basis of the arguments advanced at the stage of final hearing of the matter, made adverse observations against her by almost finding her guilty of the offence punishable under Section 58 of the NDPS Act - the learned Special Judge had given a complete go-bye to all the principles of natural justice.
It is a well-settled principle of law that justice should not only be done but should be seen to be done.
The matter went to the High Court in revision. The High Court, by the impugned judgment and order refused to interfere with the same and upheld the order dated 30th May 2008. The said impugned judgment and order was stayed by this Court vide order dated 26th October 2010 - The judgment and order dated 14th October 2010 passed by the High Court in Criminal Revision No. 2194 of 2008 is quashed and set aside - Appeal allowed.
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2024 (12) TMI 877
Maintainability of appeals u/s 13, including Section 13 (1A) of the Commercial Courts Act, 2015 - Commercial Court within the meaning of Section 13 read with Section 2(b) of the CCA - Application of the doctrine of res judicata.
Res judicata or principles analogous to res judicata - HELD THAT:- This doctrine finds expression in Section 11 of CPC, but it is well settled that Section 11 of CPC is not the foundation of this doctrine but is merely the statutory recognition thereof. Accordingly, Section 11 of CPC is not exhaustive of the general doctrine of res judicata. This doctrine is founded on equity, justice and good conscience - the provision in Section 11 of CPC or the doctrine of res judicata says that once a matter is finally heard and decided between two parties, such a matter will not be allowed to be re-agitated amongst the same parties or the parties claiming under them.
The Hon'ble Supreme Court in Vijayabai and others vs. Shriram Tukaram and others [1998 (11) TMI 703 - SUPREME COURT] has held that the principle of res judicata would apply not only to two suits or proceedings but also to two different stages in the same suit or proceedings. The Court held that even if the strict parameters of Section 11 of CPC are not attracted, still, principles analogous to res judicata or estoppel would still apply.
The matter of maintainability of appeals against judgments and orders made in proceedings for execution or enforcement of arbitral awards was directly and substantially in issue in the former proceedings, which came to be disposed of by judgment and order dated 9 August 2019. It is precisely the very same issue that is directly and substantially in issue in the present proceedings. Therefore, all the parameters necessary to attract the doctrine of res judicata, or in any event, the principles analogous to res judicata, are fully satisfied in these matters - the judgment and order dated 9 August 2019 in the former proceedings is sufficient to uphold the first objection to the maintainability of these appeals raised by and on behalf of the respondents.
Law of the case doctrine - HELD THAT:- To put this doctrine in perspective, the interpretative intricacies in understanding a precedent differ from those involved in understanding the law of the case. A precedent binds to the extent the holding accords with the facts on hand. On the other hand, the law of the case fetters a later Bench in the same case from taking a contrary stand to that taken earlier by the previous Bench. Of course, this constraint flows down to the lower judicial echelons or applies to coordinate Benches, but not appellate or higher fora - these appeals are not maintainable given the judgment and order dated 9 August 2019 in Commercial Appeal (L) No. 109 of 2019 and connected appeals.
Independent of Res Judicata, whether these appeals are maintainable? - HELD THAT:- Even independent of the principle of res judicata, we are satisfied that these appeals are not maintainable simply because the proceedings for execution or enforcement of the arbitral award were not proceedings under the CPC or the CCA, but they were proceedings under the ACA. Accordingly, the issue of appealability of orders, whether interim or final, made in such proceedings for execution or enforcement of arbitral awards would have to be determined by the provisions of the ACA in general and Section 37 of the ACA in these particular cases.
Section 35 of the Arbitration and Conciliation Act imparts finality to arbitral awards. This section provides that subject to this Part, i.e. Part I, an arbitral award shall be final and binding on the parties and persons claiming under them, respectively. Section 36 of the Arbitration and Conciliation Act provides that where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the Court.
Adopting the mechanism under the CPC does not convert the execution or enforcement proceedings under Section 36 of the Arbitration Act into proceedings under Order XXI of the CPC. Therefore, even if Respondents 1 and 2 may have referred to the provisions of Order XXI of the CPC or Rule 313 of the Bombay High Court (Original Side) Rules, that can make no difference to the character of the enforcement proceedings under Section 36 of the Arbitration Act.
Jet airways [2011 (10) TMI 783 - BOMBAY HIGH COURT] precedent - HELD THAT:- The Coordinate Bench in Jet Airways (supra), by adverting to several binding precedents emanating from the Hon’ble Supreme Court, held that the execution/enforcement proceedings were proceedings under Section 36 of the Arbitration Act and not proceedings for execution under Section 47 or Order XXI of the CPC. The Coordinate Bench also held that the appealability issue would be governed by Section 37 of the ACA, a special enactment that would prevail over the CPC, which was only a general enactment. Similarly, the Coordinate Bench also held that clause 15 of the Letters Patent was also impliedly excluded by the special provisions of the ACA. Finally, the Coordinate Bench held that the Supreme Court’s decision in Fuerst Day Lawson Limited [2011 (7) TMI 1275 - SUPREME COURT] conclusively determined the question of maintainability and the observations in paragraphs 70 to 73 constitute a binding precedent even in respect of maintainability of an appeal against an order passed in proceedings arising out of a domestic award under Part I of the ACA.
These appeals cannot be held to be maintainable by reference to sections 13 or 13 (1A) of the CCA read with the provisions in Order XVIII of the CPC.
The appellants are determined not to pay the first and second Respondents under the consent award dated 14 July 2014 and the consent order dated 22 February 2018. Considerable judicial time has been spent dealing with almost identical arguments on the issue of maintainability in Commercial Appeal (L) No. 109 of 2019 and connected matters and the present appeals. This is at the cost of several non-commercial matters, which cry for scarce judicial time and commercial matters, which must be expedited given the legislative intent of both the Commercial Courts Act and the Arbitration Act.
The appellants are directed to pay consolidated costs of Rs. 20,00,000/-, out of which Rs 10,00,000/- to be shared by the first and second Respondents, and the balance Rs. 10,00,000/- by the Maharashtra State Legal Services Authority. These costs must be paid within four weeks from today, and proof of payment must be filed in the Registry - Appeal dismissed as not maintainable.
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2024 (12) TMI 833
Dishonor of Cheque - rebuttal of presumptions u/s 118 and 139 of the Negotiable Instruments Act - preponderance of probabilities - Conviction under Section 138 of the Act - HELD THAT:- Undoubtedly, the presumptions are rebuttable and the law on this point is well settled that for rebutting the presumption, an accused is not required to lead any evidence. He can even, from the evidence of the complainant infer and make a case out that presumption has been rebutted. An accused is not required to rebut a presumption by the standard of a proof beyond reasonable doubt, but preponderance of probabilities or a probable defence is enough to rebut such presumptions. Each case is to be decided on the basis of the facts and circumstances of the particular case. There cannot be any straight jacket formulae to that extent.
In the case of Rohitbhai Jivanlal Patel Vs. State of Gujarat and Another [2019 (3) TMI 769 - SUPREME COURT], the Hon’ble Supreme Court has discussed the presumption that are available under Sections 118 and 139 of the Act. The Hon’ble Supreme Court has also adverted to the level of evidence required to prove a case under the provisions of the Act.
It has been the case of the revisionist that he was under no obligation to issue a cheque, but, one of his workers, Mohd. Nazim, had taken loan from the private respondent and as security thereof, he had given a cheque of Rs. 50,000/- - The revisionist has been examined as DW1 and Mohd. Nazim has been examined as DW2. As DW1, Abdul Qadir, the revisionist, has stated that Mohd. Nazim had taken loan of Rs. 50,000/- at 5% rate of interest from the private respondent, and in lieu thereof, he had given two security cheques. According to DW1, Abdul Qadir, the revisionist, Mohd. Nazim, had returned the amount of loan, but he could not repay the interest. DW2, Mohd. Nazim, has also stated so.
Rate of interest - HELD THAT:- The revisionist himself has stated that the loan was given at the rate of 5% interest. This has been so stated by DW2, Mohd. Nazim, in Para 3 of his statement, but in Para 10, he speaks of 10% rate of interest. It is true that no specific date has been disclosed by the private respondent. But then, it is not disputed that the cheque was given by the revisionist to the private respondent. What is in dispute is as to why the cheque was given? According to the private respondent, loan was advanced to the revisionist and in repayment of the loan amount, cheque was given, whereas, as stated, according to the revisionist, loan was taken by Mohd. Nazim, an employee of him, and as a security, he had given the cheques.
The findings are based on admissible evidence. It is not the case that any admissible evidence has been ignored. It cannot also be said that the finding is not based on legally admissible evidence. Therefore, the impugned judgments and orders are in accordance with law. They do not require any interference, so far as the conviction of the revisionist under Section 138 of the Act is concerned. To that extent, there is no merit in the revision and it deserves to be dismissed.
This Court is of the view that the interest of justice would be better served, if the revisionist is sentenced to the period of custody, which he has already undergone in the instant case - the conviction of the revisionist under Sections 138 of the Act, as recorded in the case and upheld in the appeal is confirmed - the revisionist is sentenced to the period of custody, which he has already undergone in the instant case. The amount of fine and other directions with regard to payment of compensation given by the trial court and confirmed in appeal shall remain unaltered.
The revision is partly allowed.
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2024 (12) TMI 788
Direction to appellant to handover possession of the plot in question to the respondent within three weeks from the date the amount is paid along with interest to the Indore Development Authority - default in payment and subsequent legal actions taken by the respondent - HELD THAT:- In the present case, the respondent at the first instance opted to file a writ petition before the High Court of Madhya Pradesh and a favourable order was also passed in his favour on 01.08.2006 directing the respondent to pay the balance outstanding amount within 30 days and further directed the appellant i.e. Indore Development Authority to handover the possession of the plot to the writ petitioner i.e. respondent herein. However, only a sum of Rs. 5,72,782/- through a demand draft was presented in the month of September, 2006, against the total outstanding dues of Rs. 12,02,592/-.
The appellant i.e. Indore Development Authority has shown magnanimity in the matter by reducing the interest vide letter dated 17.02.2009 and the amount was reduced to Rs. 11,04,948/- which was required to be paid on or before 28.02.2009. The respondent, not being satisfied even with the reduction of amount, opted for a different route for redressal of his grievance by approaching the District Forum and the District Forum was justified in dismissing the complaint of the respondent - The State Commission by way of an interim order dated 15.12.2017 directed the appellant i.e. Indore Development Authority to accept the outstanding amount with interest and to deliver the possession of plot in question to the respondent, meaning thereby, a final relief was granted by way of an interim order and under these circumstances, the matter had reached the National Commission. In the considered opinion of this Court, final relief could not have been granted by the State Commission on an interlocutory application filed in the matter.
In respect of NIT/advertisement issued on 05.10.1994, no such order could have been passed by the National Commission in the peculiar facts and circumstances of the present case i.e. after a lapse of period of 28 years. It was the respondent who committed default in depositing the balance amount as per the terms and conditions of the NIT and even after the first round of litigation before the High Court, the respondent did not deposit the amount of Rs. 12,02,592/- which was outstanding against him and, therefore, at this juncture, after a lapse of 28 years, the question of directing the appellant i.e. Indore Development Authority as has been done by the National Commission to accept the amount does not arise. Resultantly, the orders passed by the State Commission dt. 15.12.2017 and National Commission dt. 29.03.2023 deserve to be set aside and are accordingly set aside and it is made clear that the appellant i.e. Indore Development Authority shall issue a fresh tender in respect of the said plot in question and shall allot the plot only by way of auction or by following the due process as per rules.
The appeal stands allowed.
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2024 (12) TMI 663
Appointment of an arbitrator by the High Court of Madras under Section 11(6) of the Arbitration and Conciliation Act, 1996 - violation of non-disclosure obligations under clause 19 of the appointment order leading to the order of termination - Nonpayment of wages and the legality and validity of the order of termination dated 21.01.2021.
Appointment of an arbitrator by the High Court of Madras under Section 11(6) of the Arbitration and Conciliation Act, 1996 - violation of non-disclosure obligations under clause 19 of the appointment order leading to the order of termination - HELD THAT:- In the order impugned, the High Court has proceeded to note an arbitration agreement and therefore, appointed an advocate as the arbitrator - The issue relating to violation of the non-disclosure obligation under clause 19 is only an afterthought. This was evidently not the ground when the respondent issued the show cause notice on 04.09.2020, nor was it a part of the inquiry report. This is also not a part of the charge memo dated 25.11.2020.
Crucially, the termination was not based on any such allegation as is evident from the termination order dated 21.01.2021 - It can be concluded that there is no dispute about violation of nondisclosure obligations and Section 11(6) petition, to this extent is non-existent.
Nonpayment of wages and the legality and validity of the order of termination dated 21.01.2021 - HELD THAT:- The appellant approached the Authority under the PW Act much before the order of termination and the said authority would exercise jurisdiction under Section 15(2) of the PW Act to the exclusion of civil courts and these disputes are non-arbitrable - It was clearly intended to threaten the appellant for having approached the statutory authorities under the PW Act and the ID Act. There is no basis for invoking clause 19 of the agreement and demanding compensation of Rs. 14,02,822/- when that fact situation did not arise.
The Section 11(6) petition has two facets. The first relates to disputes that were anyway pending before the statutory authorities, and they related to non-payment of wages and legality and propriety of termination which are non-arbitrable. The second facet relates to the alleged violation of clause 19 relating to nondisclosure obligation, which was not raised in the show cause notice, inquiry report, chargesheet and termination order and as such is non-existent.
The judgment and the order passed by the High Court set aside - the petition under Section 11(6) filed by the respondent under the Arbitration and Conciliation Act dismissed.
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2024 (12) TMI 595
Appeal against High Court order quashing resumption of plot and restoring it to allottee - allottees had failed to make payment of the remaining 75% of the premium amount as per the terms and conditions of the auction sale - lease of the auction site was cancelled by the Assistant Estate Office - HELD THAT:- Under the circumstances, despite sufficient opportunities of hearing given to the allottees to clear the outstanding dues, the respondents – allottees had failed to clear the same. Hence, the High Court had committed gross error in allowing the writ petitions by holding that the tenant, i.e., M/s. Mohit Medicos was not served with the notice of resumption with regard to the plot in question. Admittedly, there was no document whatsoever produced by the said alleged tenant to show that it was the tenant of the original allottees - Manjit Kumar Gulati and Ors. When the original allottees themselves had failed to comply with the conditions of auction sale, and when the allotment itself made in favour of the said allottees was cancelled by the Statutory Authority after following the due process of law, i.e., by issuing show cause notice before cancellation of allotment, and when number of opportunities of hearing were given to the allottees to clear the outstanding dues, there was no question of serving any notice to the so called tenant, M/s. Mohit Medicos, especially when there was nothing on record to suggest that M/s. Mohit Medicos was the tenant of the original allottees - Manjit Kumar Gulati and Ors.
The High Court had completely lost sight of the said factual aspects of the matter while allowing the writ petitions filed by the respondents – allottees and the so called tenant – M/s. Mohit Medicos.
The High Court had completely lost sight of the said factual aspects of the matter while allowing the writ petitions filed by the respondents – allottees and the so called tenant – M/s. Mohit Medicos. The decision of FULL Bench of Punjab and Haryana High Court relied upon by the learned senior counsel for the respondent(s) - tenant has no application to the facts of the present case, inasmuch as the respondent(s) – M/s. Mohit Medicos, by no stretch of imagination could be said to be a tenant of the original allottees, in absence of any material placed on record, to substantiate the same. The litigation carried forward by the said alleged tenant is nothing but a proxy litigation on behalf of the original allottees, who were the defaulters and an abuse of process of law.
The impugned order passed by the High Court being erroneous is set aside - Appeal allowed.
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2024 (12) TMI 592
Dishonour of Cheque - compounding of offence - parties have entered into compromise with their free will - conviction for offence under Sections 138 of N.I. Act 1881 - HELD THAT:- Since the parties have entered into compromise at the stage of revision, therefore, law laid down by the apex Court in the case of Damodar S. Prabhu Vs. Sayed Babalal H. [2010 (5) TMI 380 - SUPREME COURT] will be applicable in this case, where it was held that 'It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. We have already explained that the scheme contemplated under Section 320 of the CrPC cannot be followed in the strict sense. In view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act.'.
Considering the fact that the parties have amicably settled their dispute and have entered into compromise before this Court in the revision and decided to avoid further litigation, hence, the applicant is liable to pay 3% of the cheque amount of Rs.2,00,000/-i.e. Rs.6000/- by way of cost to be deposited with the “State Legal Services Authority” Indore - Subject to payment of cost at the rate of 3% of the cheque amount with the “State Legal Services Authority” Indore, within a period of 10 days from today, the applicant be released from the jail, the applicant shall be acquitted from the charges under Section 138 of N.I. Act on the basis of compromise.
The revision disposed off.
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2024 (12) TMI 522
Dishonour of cheque - Compounding of offence under Section 138 of the Negotiable Instruments Act - compromise between the parties - Sections 438 and 442 of Bhartiya Nagarik Suraksha Sanhita - HELD THAT:- Having taken note of the fact that the petitioneraccused, during the pendency of the instant petition, has deposited the entire amount of compensation of Rs.1,15,000/- in the Registry of this Court, as full and final settlement of the claim, and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accused-petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. [2010 (5) TMI 380 - SUPREME COURT] wherein the Hon’ble Apex Court has held 'Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that ‘No offence shall be compounded except as provided by this Section’. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.'
In K. Subramanian Vs. R. Rajathi [2009 (11) TMI 1013 - SUPREME COURT], it has been held by the Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction.
Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has deposited the entire amount of compensation of Rs.1,15,000/- in the Registry of this Court, as full and final settlement of the claim, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court - Therefore, in view of the detailed discussion made as well as law laid down by the Hon’ble Apex Court, the application is allowed and matter is ordered to be compounded.
The present matter is ordered to be compounded and impugned judgment of conviction and order of sentence dated 16.01.2024, passed by learned Judicial Magistrate 1st Class, Court No. 2, Paonta Sahib, District Sirmour, H.P. in CIS Regn. No. 379 of 2019, and affirmed vide order dated 10.07.2024, passed by learned Additional Sessions Judge, Sirmour at Nahan, H.P., in Criminal Appeal No. 31 of 2024, are quashed and set-aside and the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act - Petition disposed off.
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2024 (12) TMI 521
Dishonour of Cheque - compounding of offence on the basis of compromise deed - complainant-respondent have settled the matter - HELD THAT:- Having taken note of the fact that the petitioner - accused and the complainant-respondent have settled the matter and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accusedpetitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. [2010 (5) TMI 380 - SUPREME COURT], wherein the Hon’ble Apex Court has held that 'Offences to be compoundable– Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.'
At this point, it would be apt to clarify that in view of the non-obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (CrPC) will not be applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code, 1860.
In K. Subramanian Vs. R. Rajathi [2009 (11) TMI 1013 - SUPREME COURT], it has been held by the Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction.
Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has compromised the matter with the complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court - in view of the detailed discussion made hereinabove as well as law laid down by the Hon’ble Apex Court, the application is allowed and matter is ordered to be compounded.
The present matter is ordered to be compounded and the impugned judgment of conviction and order of sentence, dated 08.07.2016, passed by learned Judicial Magistrate 1st Class Anni, District Kullu, H.P., in Case No. 14-3 of 2016, and affirmed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., vide judgment dated 06.03.2019, in Criminal Appeal No. 15 of 2018, are quashed and set-aside and the petitioner accused is acquitted of the charge framed against him under Section 138 of the Act. Bail bonds, if any, stand discharged.
Petition disposed off.
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2024 (12) TMI 267
Quantification of interest on refund claim - Refund to flat buyers - HELD THAT:- It is stated at the Bar that out of 14 complainants as mentioned in the list, the matter has been amicably settled with 11 complainants and so the issue only remains in respect of the 03 complainants - As per the settlement, the appellants are required to pay the amount received from each of the complainants along with interest @ 9% per annum.
Since the matter is settled with a large number of complainants with interest @ 9% per annum, the remaining three complainants should also be given interest at the same rate - appellants had already deposited the principal amount alongwith interest at the rate of 9 per cent per annum in the Registry of this Court.
Whether the actual amount should be paid or it should be paid after deducting the TDS, as per the provisions of the Income Tax Act? - HELD THAT:- The payment of interest should be made without deducting TDS.
The appeals are partly allowed.
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2024 (12) TMI 1
Dishonour of Cheque - application filed u/s 482 of CrPC for quashing complaint under Section 138 of NI Act - HELD THAT:- Admittedly, the petitioner has issued two numbers of post-dated Cheques bearing No. 622623 and 622624 for an amount of Rs. 93,00,000/- and Rs. 1,54,00,000/- respectively. The parties have entered into an agreement with certain stipulations/terms and conditions. The terms and conditions of the Deed of Undertaking duly executed between the petitioner and the respondent provides that the petitioner will clear the GST, amounting to Rs. 9,63,00,000/-in respect of the firm-M/s Kurung Kumey Enterprises for execution of the work. An amount of Rs. 9,63,00,000/-, of which 10% GST amount will be Rs. 33,00,000/- shall be paid by the petitioner to the respondent. If the GST of 2% is reflected by the Department of Municipal Corporation, the amount to be paid by the petitioner will be Rs. 1,54,00,000/- to the respondent.
Perusal of the Deed of Undertaking goes to show that the two Cheques have been issued as post-dated for an amount of Rs. 93,00,000/- and Rs. 1,54,00,000/- to the respondent on fulfillment of certain conditions. Having considered the said stipulation, it is afraid that such an stipulation could be a valid stipulation insofar as the issuance of Cheques are concerned.
This Court finds no ground to quash the proceedings of C.R. No. 100/2022 and taking cognizance by the learned Judicial Magistrate First Class, Yupia, as if at all, the issues/grounds that have been raised appears to be a matter of trial before the competent Court.
It is not inclined to invoke the inherent power of this Court for quashing of the proceedings in the instant case - The criminal petition is rejected and stands dismissed.
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2024 (11) TMI 1432
Direction to consider the representation for demand of justice within 30 days - HELD THAT:- The respondent No. 2 is directed to adjudicate the representation/notice for demand of justice (Annexure-6) dated 20.11.2024 considering the judgment passed in Pawan Meena [2024 (2) TMI 1519 - RAJASTHAN HIGH COURT] and circular dated 19.02.2024 passed by Chief Secretary, Rajasthan within a period of 30 days from passing of this order.
Petition disposed off.
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2024 (11) TMI 1429
Imposition of costs on the petitioner management for seeking adjournments - refusal to grant further pass-overs or adjournments - HELD THAT:- Admittedly, the petitioner management is being represented by three authorized representatives before the Industrial Tribunal, out of whom one appeared before the Tribunal on 05.11.2024 in the first call and sought a pass-over, which was granted by the Tribunal. Thereafter in second call, two other authorized representatives joined the hearing through video conferencing and sought yet another pass-over on the ground that another matter of theirs was listed before this Court. The learned Tribunal found it not possible to grant another pass-over, so declined the request and after recording the chief examination of two witnesses, offered the witnesses to both representatives of the petitioner management for cross examination. Despite that, those two authorized representatives refused to cross examine the witnesses and sought adjournment.
This is a classic case of efforts done by one of the litigants to protract the proceedings with the object of frustrating the other side so that the other side gives up. Such a conduct, especially in the industrial disputes, which involve extreme disparity of resources available to the rival litigants has to be deprecated. The petitioner management, despite facing such costs, again tried to derail the proceedings by seeking amendment of issues on 08.11.2024 in the dispute pending since the year 2009. That speaks volumes of their intention.
It has been repeatedly observed and held that adjournments and pass-overs are not a matter of right of the counsel but only a courtesy extended by the Court. Since the witnesses were present, instead of adjourning the matter, the learned Tribunal wisely granted a pass-over and examined them in chief - the learned Industrial Tribunal adopted a perfectly justified approach by first granting pass-over so that the witnesses would not go unexamined and thereafter offered the witnesses for cross examination by the authorized representatives of the petitioner management and finally adjourning the matter with costs to be paid to the witnesses, who had wasted their day and were to come again.
Conclusion - i) Adjournments and pass-overs are not a matter of right of the counsel but only a courtesy extended by the Court. ii) Judicial efficiency and the timely resolution of disputes take precedence over accommodating repeated adjournment requests, especially in cases with significant delays.
The impugned order is upheld and the petition is dismissed with further costs of Rs. 20,000/- to be deposited by petitioner with DHCLSC within one week.
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2024 (11) TMI 1414
Demolition of properties of individuals accused of crimes without following the due process of law - Rule of law - doctrine of separation of powers - Doctrine of public trust and public accountability - Presumption of innocence and natural justice - Right to shelter - Permissibility of the collective punishment.
Rule of law - HELD THAT:- The law must be just and fair, and also protect the human rights and dignity of all members of society. At the same time, the essential purpose of the Rule of law is to prevent the abuse of power. The Rule of law is an umbrella concept to protect citizens against the power of the State. It is integral to and necessary for democracy and good governance - the concept of Rule of law needs to be considered broadly. The legal sanctity of practices in the past such as slavery in the United States, apartheid in South Africa, or untouchability in India would have to be considered as antitheses to the Rule of law apart from being a serious affront to human dignity.
The Rule of law has been described as a safeguard against the arbitrary use of the State power. It ensures that the actions of the Government and its authorities are governed by established legal principles, rather than arbitrary discretion. Whenever the citizens in the form of mobs have broken the law to vandalize or to declare threats, the Court has cast an obligation on the State to prevent such threats or assaults. This obligation underscores the State's responsibility to maintain law and order and protect citizens from unlawful actions that undermine the Rule of law itself.
The Rule of law provides a framework and value system to 'rein in the arbitrary exercise of state power and to prevent the abuse of power, to ensure predictability and stability, to make sure that individuals know that their lives, their liberty, their property will not be taken away from them arbitrarily and abusively'.
Separation of powers - HELD THAT:- This Court can issue a direction to the executive and also formulate guidelines for facilitation and in furtherance of fundamental rights and sometimes for the actualization and fructification of statutory rights.
The question arises as to whether when the adjudicatory functions are entrusted to the judiciary, can the officers of the State Government take upon themselves the adjudicatory function and without a person undergoing a trial be inflicted with a punishment of demolition of his properties. In our view, such a situation would be wholly impermissible in our constitutional set up. The executive cannot replace the judiciary in performing its core functions.
Doctrine of public trust and public accountability - HELD THAT:- If the executive in an arbitrary manner demolishes the houses of citizens only on the ground that they are Accused of a crime, then it acts contrary to the principles of 'rule of law'. If the executive acts as a judge and inflicts penalty of demolition on a citizen on the ground that he is an Accused, it violates the principle of 'separation of powers'. In such matters the public officials, who take the law in their hands, should be made accountable for such high-handed actions - certain binding directives need to be formulated. This will ensure that public officials do not act in a high-handed, arbitrary, and discriminatory manner. Further, if they indulge in such acts, accountability must be fastened upon them.
Rights of the accused under the Constitution - HELD THAT:- Firstly, even the Accused or the convicts have certain rights and safeguards in the form of constitutional provisions and criminal law. Secondly, the State and its officials cannot take arbitrary and excessive measures against the Accused or for that matter even against the convicts without following the due process as sanctioned by law. The third principle that would emerge is that when the right of an Accused or a convict is violated on account of illegal or arbitrary exercise of power by the State or its officials or on account of their negligence, inaction, or arbitrary action, there has to be an institutional accountability. One of the measures for redressing the grievance for violation of a right would be to grant compensation. At the same time, if any of the officers of the State has abused his powers or acted in a totally arbitrary or mala fide manner, he cannot be spared for such an illegal, arbitrary, mala fide exercise of power.
Presumption of innocence and natural justice - HELD THAT:- The Rule of law, the rights of the citizens guaranteed under the Constitution, and the principles of natural justice would be essential requirements. If a citizen's house is demolished merely because he is an Accused or even for that matter a convict, that too without following the due process as prescribed by law, in our considered view, it will be totally unconstitutional for more than one reason. Firstly, the executive cannot declare a person guilty, as this process is the fundamental aspect of the judicial review. Only on the basis of the accusations, if the executive demolishes the property/properties of such an Accused person without following the due process of law, it would strike at the basic principle of Rule of law and is not permissible. The executive cannot become a judge and decide that a person Accused is guilty and, therefore, punish him by demolishing his residential/commercial property/properties. Such an act of the executive would be transgressing its limits.
It is to be noted that even in the cases consisting of imposition of a death sentence, it is always a discretion available to the courts as to whether to award such an extreme punishment or not. There is even an institutional safeguard in the cases of such punishment to the effect that the decision of the trial court inflicting death penalty cannot be executed unless it is confirmed by the High Court. Even in the cases of convicts for the commission of most extreme and heinous offences, the punishment cannot be imposed without following the mandatory requirements under the statute. In that light, can it be said that a person who is only Accused of committing some crime or even convicted can be inflicted the punishment of demolition of his property/properties? The answer is an emphatic 'No'.
Right to shelter - HELD THAT:- The right to shelter is one of the facets of Article 21 of the Constitution. If the persons are to be dishoused, then for taking such steps the concerned authorities must satisfy themselves that such an extreme step of demolition is only available and other options including compounding and demolition of only part of the house property are not available.
Permissibility of the collective punishment - HELD THAT:- Right to life is a fundamental right. As already discussed herein above, with the expanded scope of law, the right to shelter has also been considered as one of the facets of Article 21 of the Constitution. In one structure, various people or maybe even a few families could reside. The question that is required to be considered is, as to whether if only one of the residents of such a structure is an Accused or convicted in a crime, could the authorities be permitted to demolish the entire structure thereby removing the shelter from the heads of the persons who are not directly or indirectly related with the commission of crime.
It is a settled principle of criminal jurisprudence as recognized in our country that a person is presumed to be innocent till he is held guilty. If demolition of a house is permitted wherein number of persons of a family or a few families reside only on the ground that one person residing in such a house is either an Accused or convicted in the crime, it will amount to inflicting a collective punishment on the entire family or the families residing in such structure. The constitutional scheme and the criminal jurisprudence would never permit the same.
Conclusion - i) No demolition should be carried out without a prior show cause notice returnable either in accordance with the time provided by the local municipal laws or within 15 days' time from the date of service of such notice, whichever is later. ii) The designated authority shall give an opportunity of personal hearing to the person concerned. iii) An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days.
Application disposed off.
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2024 (11) TMI 1408
Condonation of delay of more than 534 days in filing the appeal - HELD THAT:- It appears that the entire blame has been thrown on the head of the advocate who was appearing for the petitioners in the trial court. We have noticed over a period of time a tendency on the part of the litigants to blame their lawyers of negligence and carelessness in attending the proceedings before the court. Even if assumed for a moment that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief.
Conclusion - There are no error not to speak of any error of law in the impugned judgment of the High Court warranting interference in exercise of our jurisdiction under Article 136 of the Constitution of India.
Petition dismissed.
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