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Indian Laws - Case Laws
Showing 281 to 300 of 25688 Records
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2023 (11) TMI 141 - ALLAHABAD HIGH COURT
Dishonour of Cheque - no evidence given to demonstrate that notice was served on a particular date - it was nowhere written in the complaint as to when the notice was served on the accused - HELD THAT:- The date of the receipt of notice is very much important but it is not necessary that any particular date as regard receipt of demand notice should mandatorily be mentioned in the complaint itself - In judgment of Deepak Kumar and Another [2006 (9) TMI 617 - ALLAHABAD HIGH COURT], this High Court observed that in case dates are not revealed in the complaint, the same can be inferred from the paper on record.
In this case the complainant, in his complaint, clearly stated that the notice was sent through a registered post on 19.11.2019 and that it was never returned to the complainant. In view of the above statement in the complaint and in view of the papers produced viz, the cheque, the Bank memo, demand notice, the disclosure of material dates like, date of dishonour, date of sending the notice, the date on which 15 days elapsed, the date of the filing of the complaint clearly and explicitly mentioned in para no. 12 of the complaint, there remains no doubt that the petition is wholly without merit. It may specifically be noted that para no. 12 of the complaint discloses a date of service of notice as well, a fact which has been conveniently ignored by the accused petitioner all the while - an attempt to stall the proceedings has been made on the basis of non-existent ground.
There are no infirmity, illegality or irregularity in the summoning order dated 10.12.2020 as well as the order dated 20.01.2023 - petition dismissed.
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2023 (11) TMI 140 - CALCUTTA HIGH COURT
Dishonour of Cheque - existence of legally enforceable debt or not - acquittal of accused of all charges - amicable settlement arrived at between both the parties - HELD THAT:- The contention of the petitioner that the claim of the balance amount on settlement not being the amount of cheque, the present proceeding under Section 138 N.I. Act being not maintainable, is not in accordance with law, as the payment was not made between the date when cheque was drawn and the date when the cheque was presented on maturity, and on the date of presentation, the total cheque amount was payable by the petitioner towards an enforceable debt and liability.
The revisional application is accordingly dismissed.
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2023 (11) TMI 52 - DELHI HIGH COURT
Dishonour of Cheque - Veracity of the said ‘Authority Letter’, the execution thereof and the phraseology used therein - HELD THAT:- Records reveal that the petitioner has nowhere disputed the execution of a ‘Promissory Note’, in his handwriting, under his signatures, acknowledging his liability of the debt to the respondent no. 2 and his wife. Similarly, the petitioner has also nowhere disputed the factum of issuance of any of the aforesaid 9 cheques or his signatures thereon or his handwriting thereon. So much so, the petitioner has also nowhere denied that there is no liability/ debt against the aforesaid 9 cheques. It is also nowhere denied that all the aforesaid 9 cheques were [i] pertaining to the very same transaction; [ii] issued on the same date; and [iii] returned on the same date by the very same Bank - A perusal of the pleadings made by the petitioner herein also disclose that there is no such averment exhibiting any special cause and/ or reason made anywhere before this Court to exercise its inherent powers under Section 482 CrPC.
With respect to issue(s) of the execution of the ‘Authority Letter’, the phraseology used therein as also the same being improperly executed, non-filing of the complaint under Section 138 NIA by the wife of the respondent no. 2, respondent no. 2 not being either the payee or the holder in due course, and non-certification of the bank memo or the return slip by the bank, in the opinion of this Court, the aforesaid being disputed questions of facts, require trial and due adjudication by the learned Trial Court and not by this Court and that too at this stage, whence the learned MM is already seized of the complaint and has merely passed the summoning order.
In the opinion of this Court, if this Court proceeds to consider the aforesaid issues, it would tantamount to holding a mini trial, which as per trite law and under the facts and circumstances involved herein, is per se not permissible under Section 482 CrPC, especially whence the trial before the learned MM is ongoing. This Court cannot substitute or carry out the functions of the learned Trial Court. In any event, considering that the proceedings before the learned MM are at a very nascent stage, it would be improper for this Court to enter the merits of the Complaint Case.
In the opinion of this Court, the petitioner has not been able to make out a case for invoking its powers under 482 of the CrPC. More so, whence the present petition has been filed on technical grounds wherein almost more than 2 years have elapsed and the issues raised therein are a matter of trail. As per this Court, the present petition seems to be motivated to somehow delay and derail the proceedings/ trial before the learned MM. Thus, the present petition is a fit one calling for not only dismissal but also for imposition of costs.
The present petition along with the application is dismissed with costs of Rs. 50,000/- to be paid in favour of the Delhi State Legal Services Committee within a period of two weeks.
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2023 (11) TMI 1 - BOMBAY HIGH COURT
Dishonor of Cheque - legally enforceable debt or not - Transaction in violation of Section 269-SS of Income Tax Act - unaccounted cash - Can such tranaction be permitted to be enforced, by institution of proceedings under Section 138 of the Negotiable Instruments Act ? - HELD THAT:- Acceptance of an amount exceeding Rupees Twenty Thousand in cash attracts penalty under Section 271-D of the Act of 1961 but such acceptance does not nullify the transaction. Infact, the penalty can be waived on showing reasonable cause. Hence, violation of Section 269-SS by the drawer of the cheque would not render the amount in question non-recoverable.
A transaction not reflected in the books of accounts and/or Income Tax returns of the holder of the cheque in due course can be permitted to be enforced by instituting proceedings under Section 138 of the Act of 1881 in view of the presumption under Section 139 of the Act of 1881 that such cheque was issued by the drawer for the discharge of any debt or other liability, execution of the cheque being admitted. Violation of Sections 269-SS and/or Section 271-AAD of the Act of 1961 would not render the transaction unenforceable under Section 138 of the Act of 1881.
The decisions in Krishna P. Morajkar [2013 (7) TMI 1163 - BOMBAY HIGH COURT], Bipin Mathurdas Thakkar and Pushpa Sanchalal Kothari [2015 (2) TMI 1351 - BOMBAY HIGH COURT] lay down the correct position and are thus affirmed. The decision in Sanjay Mishra [2009 (2) TMI 901 - BOMBAY HIGH COURT] with utmost respect stands overruled.
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2023 (10) TMI 1375 - SC ORDER
Pre-litigation Mediation and Settlement - Order VII, Rule 11 of the Code of Civil Procedure, 1908 - HELD THAT:- In the present case, it is an accepted fact that an urgent interim relief has been prayed for and the condition that the plaint "contemplates" an urgent interim relief is satisfied. Therefore, the impugned judgment/order of the Delhi High Court, which upholds the order of the District Judge (Commercial Court)-01, South District at Saket, New Delhi dated 06.02.2023, rejecting the application under Order VII, Rule 11 of the Code, is correct and in accordance with law.
When a plaint is filed under the CC Act, with a prayer for an urgent interim relief, the commercial court should examine the nature and the subject matter of the suit, the cause of action, and the prayer for interim relief. The prayer for urgent interim relief should not be a disguise or mask to wriggle out of and get over Section 12A of the CC Act. The facts and circumstances of the case have to be considered holistically from the standpoint of the plaintiff. Non-grant of interim relief at the ad-interim stage, when the plaint is taken up for registration/admission and examination, will not justify dismissal of the commercial suit under Order VII, Rule 11 of the Code; at times, interim relief is granted after issuance of notice. Nor can the suit be dismissed under Order VII, Rule 11 of the Code, because the interim relief, post the arguments, is denied on merits and on examination of the three principles, namely, (i) prima facie case, (ii) irreparable harm and injury, and (iii) balance of convenience. The fact that the court issued notice and/or granted interim stay may indicate that the court is inclined to entertain the plaint.
The proposition that the commercial courts do have a role, albeit a limited one, should be accepted, otherwise it would be up to the plaintiff alone to decide whether to resort to the procedure under Section 12A of the CC Act. An `absolute and unfettered right' approach is not justified if the pre-institution mediation under Section 12A of the CC Act is mandatory, as held by this Court in PATIL AUTOMATION PRIVATE LIMITED AND ORS VERSUS RAKHEJA ENGINEERS PRIVATE LIMITED [2022 (8) TMI 1494 - SUPREME COURT] - The words `contemplate any urgent interim relief' in Section 12A(1) of the CC Act, with reference to the suit, should be read as conferring power on the court to be satisfied. They suggest that the suit must "contemplate", which means the plaint, documents and facts should show and indicate the need for an urgent interim relief.
The present special leave petition is dismissed.
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2023 (10) TMI 1374 - DELHI HIGH COURT
Rejection of plaint under Order VII Rule 11(d) for non-compliance of Section 12A of the Commercial Courts Act, 2015 - suit for recovery of arrears of rent with interest - whether the learned DJ could have dismissed the suit only on the ground that the appellant has not complied with Section 12-A of the CCA? - HELD THAT:- It is settled law that that in terms of the judgment Patil Automation Pvt. Ltd. [2022 (8) TMI 1494 - SUPREME COURT], the compliance of Section 12-A of the CCA is mandatory unless urgent relief is contemplated. A notification has been issued by the Government of India on July 03, 2018 by which the Central Government has made rules in respect of Commercial Courts (Pre-Institution of Mediation and Settlement) Rules, 2018 as contemplated under sub-section 21A read with sub-section (1) of Section 12-A of the CCA.
The sub-section 2 of Section 12-A mandate the Central Government may by notification authorise the authorities constituted under the Legal Services Authorities Act, 1987 for the purposes of Pre-Institution Mediation - In the present case, the appellant has not made his claim in terms of the notification of July 03, 2018 before the District Legal Services Authorities (DLSA) but had approached the DHCMCC(S) which held the proceedings on three occasions and the defendant/respondent despite service did not appear, resulting in Non-starter report being submitted by the DHCMCC. This report was not accepted by the learned DJ as the report is not that of DLSA.
The issue which falls for consideration is whether the learned DJ was right in rejecting the plaint only on the ground that the appellant has approached DHCMCC(S) and not DLSA, by invoking the provisions of Order VII Rule 11(d). It is true that the provisions of the Section 12-A of the CCA specifies Pre-Institution Mediation as mandatory, in the sense that any litigation must be preceded by an attempt on the part of the parties to settle their inter se dispute, but the fact that the appellant had invoked the process of mediation before the DHCMCC(S) under the aegis of the Delhi High Court and the defendant/respondent did not appear in the proceedings, resulting in a Non-starter report would surely be construed to mean that an attempt has been made by the appellant to settle his dispute with the defendant/respondent, amicably which failed.
So, the DHCMCC(S) being a court-annexed mediation centre though under the Mediation Act, 2023 and not under the CCA Act, we are of the view that there has been a compliance of the spirit underlying Section 12A of the CCA. The issue can be seen from another perspective as the respondent had neither appeared before the DHCMCC(S) nor before the learned District Judge, despite service, the likelihood of effective pre-litigation mediation to be undertaken under the aegis of DLSA is highly unlikely as the respondent/defendant will not appear making it a futile exercise.
The impugned order/judgment dated May 15, 2023 rejecting the plaint under Order VII Rule 11(d) is set aside - Appeal allowed.
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2023 (10) TMI 1372 - SC ORDER
Seeking grant of bail - Unnatural death of a lady - proceeding has been started under Sections 304-B/34 and 120-B of the Indian Penal Code - Charges have been framed and trial has been commenced without the husband being arrested and it is submitted on behalf of the State that he is absconding - HELD THAT:- The question of grant of bail to a co-accused person cannot made dependent upon surrender of another accused who is described as the main accused person in this case.
The imposition and subsequent adhering to the condition of surrender of the husband of the deceased would not be necessary for grant of bail to the appellant - the impugned order modified and it is directed that the appellant may be released on bail in terms of the order(s) of the High Court but the condition which requires prior surrender of husband of the deceased should not be insisted upon for enlarging the appellant on bail.
Appeal allowed.
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2023 (10) TMI 1371 - SUPREME COURT
Murder - Death due to poisoning - onus to prove - Failure on the part of the appellant-convict in offering any plausible explanation in his further statement recorded u/s 313 of CrPC - shifting the burden on the accused husband to explain what had actually happened on the date his wife died - whether the High Court committed any error in passing the impugned judgment and order? - HELD THAT:- What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions.
A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one - although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution
Prima facie in the context of section 106 of Evidence Act - HELD THAT:- Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death - The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved - In the case on hand it has been established or rather proved to the satisfaction of the court that the deceased was in company of her husband i.e., the appellant-convict at a point of time when something went wrong with her health and therefore, in such circumstances the appellant-convict alone knew what happened to her until she was with him.
Failure on the part of the appellant-convict in offering ant plausible explanation in his further statement recorded u/s 313 of CrPC - HELD THAT:- The appellant-convict was expected to lead some evidence as to what had transpired at the Sanjay Gandhi Hospital. He has maintained a complete silence. It is only the appellant-convict who could have explained in what circumstances and in what manner he had taken his wife to the Sanjay Gandhi Hospital and who attended his wife at the hospital. If it is his case, that his wife was declared dead on being brought at the hospital then it is difficult to believe that the hospital authorities allowed the appellant to carry the dead body back home without completing the legal formalities.
Even where there are facts especially within the knowledge of the accused, which could throw a light upon his guilt or innocence, as the case may be, the accused is not bound to allege them or to prove them. But it is not as if the section is automatically inapplicable to the criminal trials, for, if that had been the case, the Legislature would certainly have so enacted - more than a prima facie case to enable the prosecution to invoke Section 106 of the Evidence Act and shift the burden on the accused husband to explain what had actually happened on the date his wife died.
These appeals reminds of what this Court observed in the case of Dharam Das Wadhwani v. State of Uttar Pradesh [1974 (3) TMI 124 - SUPREME COURT] “The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct.” The role of courts in such circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities, perfunctory investigation or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women.
Both the appeals fail and are hereby dismissed.
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2023 (10) TMI 1370 - CHHATTISGARH HIGH COURT
Seeking grant of bail - opening bank account in the name of the villagers by using documents given by the villagers and forging their signatures - money deposited in such bank accounts was channelized as share capital in M/s. Prime Ispat Limited through shell companies - application is a lady suffering from various ailments - twin requirement of Section 45 of PMLA satisfied or not - HELD THAT:- It is not in dispute that the FIR was registered on 19.02.2010 whereas the respondent filed a complaint arraying the applicant as accused in ECIR on 04.01.2021 i.e. after 10 years. From the summons issued to the applicant, it is quite vivid that she was permitted to appear through an authorized person and it cannot be said that she did not cooperate in the investigation. According to the proviso appended to Section 45 of the PMLA Act, a woman suffering from certain ailments may be granted anticipatory bail.
The decision cited by learned counsel for the respondent states the twin conditions of Section 45 of the PMLA Act are to be satisfied but at the same time, the judgment passed by the Hon'ble Supreme Court in the matter of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2022 (8) TMI 152 - SUPREME COURT] cannot be lost sight of as the applicant is a lady suffering from various ailments and she cooperated in the investigation of the matter and other co-accused persons against whom similar allegations were made, have already been granted anticipatory bail by the Hon'ble Supreme Court and by this Court, therefore, in opinion of this Court, the present is a fit case to extend the benefit under Section 438 of Cr.P.C. to the applicant.
It is directed that in the event of arrest of the applicant in connection with the aforesaid offence, she shall be released on anticipatory bail on her furnishing a personal bond for a sum of Rs. 50,000/- with one surety in the like sum to the satisfaction of the arresting officer and she shall abide by the conditions imposed - bail application allowed.
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2023 (10) TMI 1367 - SUPREME COURT
Seeking cancellation of Regular Bail granted - gross misuse of concession of bail - sufficient material gathered by the prosecution to indicate the involvement of Respondent No. 1 in a criminal conspiracy hatched for killing his wife or not - HELD THAT:- The unusual and surprising events that have happened post the grant of bail to Respondent No.1, do make out a case for recalling the witnesses for an effective, fair, and free adjudication of the trial. This Court is vested with vast and ample powers to have such recourse not only under Article 142 of the Constitution but also under Section 311 of the Code of Criminal Procedure, 1973, be it on the request of the prosecution or suo moto. Such Constitutional or statutory power is not limited by any barriers like the stage of inquiry, trial, or other proceeding. A person can be called and examined though not summoned as a witness, or can be recalled, or reexamined so as to throw light upon the imputations. Section 311 CrPC, of course, does not intend to fill the lacunae in the prosecution’s case and cause any serious prejudice to the rights of an accused. The exercise of power under this provision is intended to meet the ends of justice and to gather overwhelming evidence to scoop out the truth.
In the case at hand, the family members of the Deceased are the most crucial witnesses to test the veracity of the allegations levelled by the prosecution. Their stand in the examinationinchief is diametrically opposite to the one in the cross- examination. The fact that the parents and sister of the Deceased have resiled from their earlier standpoint where they had been found to be agitating vigorously before different forums since the year 2019, implores us to invoke our Constitutional powers under Article 142 read with Section 311 CrPC and direct their recalling for a fresh crossexamination after ensuring a congenial environment, free from any kind of threat, psychological fear, or any inducement.
This is a case fit for recalling the witnesses (PW1, PW4 and PW5) for their further crossexamination to reach an effective decision in the subject trial.
The impugned order dated 12.08.2020 is set aside and the bail granted to Respondent No. 1 is hereby cancelled - Appeal allowed.
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2023 (10) TMI 1364 - GAUHATI HIGH COURT
Maintainability of an intra-Court appeal against an order passed in a criminal matter by Hon'ble Single Judge of this Court under Article 226 of the Constitution of India - HELD THAT:- An intra-Court writ appeal does not lie against an order/ judgment passed by the learned Single Bench in exercise of the criminal writ jurisdiction under Article 226 of the Constitution of India. As the Gauhati High Court Rules are silent on this issue, the anomaly shall forthwith be clarified with appropriate insertion in the Rules clarifying the position that no intra- Court appeal lies against an order/judgment passed by the learned Single Bench in exercise of the criminal writ jurisdiction.
The intra-Court writ appeal preferred by the appellant herein against the judgment passed by the learned Single Judge is hereby dismissed as being not maintainable.
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2023 (10) TMI 1356 - GUJARAT HIGH COURT
Dishonour of Cheque - It is the case of the present petitioner that when the impugned cheque is produced before learned trial court the petitioner denied signature on that cheque - HELD THAT:- The criminal appeal was filed in the year 2019 against the judgment of conviction made in Criminal Case No.2005 of 2018. The petitioner came out with an application on 6.3.2023 for seeking relief for the opinion of the forensic expert about signature on the disputed cheque. It is important to note that an application Exh.38 was unsuccessfully moved by the petitioner before the learned trial Court. The order was never carried to challenge before higher Court. Moreover, the learned Session Judge has noted that no questions are raised to the complainant nor to the defence witness about signature on the disputed cheque. Thus, what appears that the petitioner by way of filing application Exh.35 aimed to prolong the proceedings of the criminal appeal. The petitioner remained silent for three years for moving such application even in the proceedings of the criminal appeal. Thus, it appears that the petitioner was thoroughly careless and negligent and now, under the pretext of one or another application, is trying to prolong the proceedings of the criminal appeal.
Reply to statutory notice u/s 138(B) of the NI Act is first stage of prosecution where the accused can raise his defence. In the present case, learned advocate for the petitioner has failed to point out that the accused has raised defence at the relevant point of time when the opportunity was available and disputed that he has not signed the cheque.
Thus, no case is made out to interfere with the impugned order under supervisory jurisdiction. Hence, present petition fails and stands dismissed.
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2023 (10) TMI 1346 - SUPREME COURT
Seeking discharge from detention - accused possessed assets disproportionate to his known source of income - failure to consider the written explanation offered - non-application of mind - violation of principles of natural justice - HELD THAT:- It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.
The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.
The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge.
The plea or the defence when requiring to be proved during course of trial is itself sufficient for framing the charge. In the instant case, the learned Trial Judge has noticed that explanation provided by the respondent accused pertaining to purchase of shop No.7 of Suman City Complex of plot No.19, Sector-11 from the loan borrowed and paid by the respondent was outside the check period and hence the explanation provided by respondent is a mere eye wash. This is an issue which has to be thrashed out during the course of the trial and at the stage of framing the charge mini trial cannot be held. That apart the explanation offered by the respondent accused with regard to buying of Maruti Wagon-R car, Activa scooter, purchase of house etc., according to the prosecution are all the subject matter of trial or it is in the nature of defence which will have to be evaluated after trial.
The High Court had committed a serious error in interfering with the well-reasoned order passed by the trial court - the impugned judgment dated 11.01.2018 passed in Criminal Revision Application No.387 of 2016 setting aside the trial court order dated 13.04.2016 requires to be set aside - appeal allowed.
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2023 (10) TMI 1342 - SUPREME COURT
Maintainability of second petition - Is a second petition maintainable Under Section 482 Code of Criminal Procedure on grounds that were available for challenge even at the time of filing of the first petition thereunder?
HELD THAT:- Though it is clear that there can be no blanket Rule that a second petition Under Section 482 Code of Criminal Procedure would not lie in any situation and it would depend upon the facts and circumstances of the individual case, it is not open to a person aggrieved to raise one plea after the other, by invoking the jurisdiction of the High Court Under Section 482 Code of Criminal Procedure, though all such pleas were very much available even at the first instance. Permitting the filing of successive petitions Under Section 482 Code of Criminal Procedure ignoring this principle would enable an ingenious Accused to effectively stall the proceedings against him to suit his own interest and convenience, by filing one petition after another Under Section 482 Code of Criminal Procedure, irrespective of when the cause therefor arose. Such abuse of process cannot be permitted.
In the case on hand, the filing of the charge sheet and the cognizance thereof by the Court concerned were well before the filing of the first petition Under Section 482 Code of Criminal Procedure, wherein challenge was made only to the sanction order. That being so, the Petitioner was not at liberty to again invoke the inherent jurisdiction of the High Court in relation to the charge sheet and the cognizance order at a later point of time.
The impugned order passed by the Allahabad High Court holding to this effect is, therefore, incontrovertible on all counts and does not warrant interference - SLP dismissed.
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2023 (10) TMI 1295 - SUPREME COURT
Seeking grant of Default bail - chargesheet or a prosecution complaint be filed in piecemeal without first completing the investigation of the case or not? - filing of such a chargesheet without completing the investigation will extinguish the right of an accused for grant of default bail or not - remand of an accused can be continued by the trial court during the pendency of investigation beyond the stipulated time as prescribed by the CrPC - HELD THAT:- It pertinent to mention that in the present case, this Court is not dealing with the merits of the case and as such is not inclined to make any observations regarding the same. Every court, when invoked to exercise its powers, must be mindful of the relief sought, and must act as a forum confined to such relief. In the present case at hand, this Court is not a court of appeal, but a court of writ, and therefore is inclined to limit its jurisdiction only to the personal liberty of the writ petitioner’s husband and the impugned points of law.
Under Section 167 of the Code of Criminal Procedure, 1898, which was the Act that governed criminal procedure before the enactment of CrPC presently in force, an accused, either under judicial or police custody, could be remanded only for a maximum period of 15 days.
Reliance placed in SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2021 (10) TMI 1296 - SUPREME COURT], wherein it was held that Section 167(2) of the Cr.P.C. is a limb of Article 21 of the Constitution of India, and as such, the investigating authority is under a constitutional duty to expedite the process of investigation within the stipulated time, failing which, the accused is entitled to be released on default bail.
It is also to be noted that as per the scheme of Cr.PC, an investigation of a cognizable case commences with the recording of an FIR under Section 154 Cr.PC. If a person is arrested and the investigation of the case cannot be completed within 24 hours, he has to be produced before the magistrate to seek his remand under Section 167(2) of the Cr.PC during continued investigation. There is a statutory time frame then prescribed for remand of the accused for the purposes of investigation, however, the same cannot extend beyond 90 days, as provided under Section 167(2)(a) (i) in cases where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and 60 days, as provided under Section 167(2)(a)(ii), where the investigation relates to any other offence.
Without completing the investigation of a case, a chargesheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC - Such a chargesheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail under Section 167(2) CrPC.
In the instant case, it is clear from the facts that during the pendency of the investigation, supplementary chargesheets were filed by the Investigation Agency just before the expiry of 60 days, with the purpose of scuttling the right to default bail accrued in favour the accused - The Investigating Agency and the trial Court, thus, failed to observe the mandate of law, and acted in a manner which was manifestly arbitrary and violative of the fundamental rights guaranteed to the accused.
It is pertinent to mention that the right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution of India. The reason for such importance being given to a seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary power of the state - it becomes essential to place certain checks and balances upon the Investigation Agency in order to prevent the harassment of accused persons at their hands.
The interim order of bail passed in favour of the accused is made absolute, and the present writ petition is, accordingly, disposed of.
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2023 (10) TMI 1294 - BOMBAY HIGH COURT
Professional Misconduct - Chartered Accountant (CA) - Delay of 19 years for completion of Proceeding on the part of ICAI - fabrication of bogus payment challans by putting forged stamp of Dena Bank, Vile Parle (W) Branch - allegation to have collected account payee cheques for making payment of sales tax dues which he misappropriated by depositing in his own bank account - HELD THAT:- The sequence of events clearly indicate that firstly the complaint itself was made after 10-12 years of the incident having taken place. Thereafter, it took the Council as many as 14 years to complete the procedure prescribed under the Act and reach a finding of guilt of Respondent. Another almost two years were spent in the process of filing the Reference and finally, about four more years were spent in removing office objections to get the Reference registered. Thus, the Council has prolonged the procedure for as many as 19 years and kept Respondent in the dock for the entire period.
Considering the nature of accusation against Respondent, the finding of guilt by the Committee and the Council and the consequent penal recommendation of such grave ramification, it is surprising that the Institute took such a long time to complete the procedure of indictment. The attitude of the Institute appears to be completely casual and negligent - Respondent is presently 77 years of age and save and except a period of five years for which he himself had surrendered his certificate of practice, he has been professionally active and no other complaint is found to have been made against him. The Institute has offered no explanation whatsoever for the inordinate delay in initiating and concluding the disciplinary action against Respondent.
The Supreme Court in its decision in the matter of State of Madhya Pradesh v Bani Singh [1990 (4) TMI 286 - SUPREME COURT] has quashed the charge memo and the departmental enquiry against an officer of the SAF, Gwalior on the ground of inordinate delay of 12 years to initiate departmental proceedings with reference to an incident that took place in 1975-76 and held that since there was no satisfactory explanation for the delay, it will be unfair to permit departmental enquiry against the officer to continue.
In the present case no explanation is offered by the Institute for the inordinate delay of as many as 19 years. Respondent has inasmuch suffered the agony of the sword of Damocles hanging over his head for so many years. In any case, we do not find that the Committee has found any substantial justification in the form of unrebutted evidence against Respondent as much as to hold him guilty to the extent that his name should be removed for a period of one year and Respondent be compelled to face an ignominy of the tag of ‘other misconduct’ at this stage in his professional career and at an age of 77 years - even the Council has merely reproduced the report of the Committee without giving its own independent findings. There is neither any analysis by the Council nor any justification recorded to explain the quantum of punishment recommended to this Court.
The view of Council is wholly untenable and the recommendation of the Council as prayed cannot be accepted. In view thereof, there is no need to take any further action against Respondent - Reference disposed off.
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2023 (10) TMI 1293 - SUPREME COURT
Murder - Scope of exception Under Section 84 of Indian Penal Code or not - issue of insanity - reversal of order of acquittal - HELD THAT:- The fact that the Appellant had committed murder of the deceased have been found established concurrently by the Trial Court as well as the High Court, therefore, we would discuss the evidence in this regard very briefly - Basing upon the evidence of PW-1 and PW-13 and the medical evidence adduced, it is fully proved that the Appellant-Accused had attacked the deceased with sharp-edged weapon causing his death.
Issue of insanity - HELD THAT:- It is settled that the standard of proof to prove the lunacy or insanity is only 'reasonable doubt' - In Surendra Mishra v. State of Jharkhand [2011 (1) TMI 1586 - SUPREME COURT] , HARI SINGH GOND VERSUS STATE OF M.P. [2008 (8) TMI 1012 - SUPREME COURT] and Bapu v. State of Rajasthan [2007 (6) TMI 557 - SUPREME COURT] this Court has held that an Accused who seeks exoneration from liability of an act Under Section 84 of Indian Penal Code has to prove legal insanity and not medical insanity. Since the term insanity or unsoundness of mind has not been defined in the Penal Code, it carries different meaning in different contexts and describes varying degrees of mental disorder. A distinction is to be made between legal insanity and medical insanity. The court is concerned with legal insanity and not with medical insanity.
It is settled that the judgment of acquittal can be reversed by the Appellate Court only when there is perversity and not by taking a different view on reappreciation of evidence. If the conclusion of the Trial Court is plausible one, merely because another view is possible on reappreciation of evidence, the Appellate Court should not disturb the findings of acquittal and substitute its own findings to convict the Accused - In the case at hand, the High Court had reversed the finding of acquittal and convicted the Appellant mainly on reappreciation of evidence by holding that the Trial Court erred in extending the benefit of Section 84 of Indian Penal Code, without even recording a finding that the Trial Court's finding is perverse.
In the light of the evidence discussed by the Trial Court including the medical evidence about the mental illness of the Appellant-Accused and his abnormal behaviour at the time of occurrence, it does not appear that the view taken by the Trial Court was perverse or that it was based on without any evidence - the High Court erred in setting aside the judgment of acquittal rendered by the Trial Court.
The Appellant-Accused of the charge Under Section 302 Indian Penal Code acquitted - appeal allowed.
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2023 (10) TMI 1249 - KERALA HIGH COURT
Dishonour of Cheque - insufficient funds - existence of legally enforceable debt or not - Presumption of innocence in favour of accused - acquittal of accused under Sec 255 (1) of Code of Criminal Procedure - HELD THAT:- This Court reminds itself of its scope and powers in deciding an appeal against an order of acquittal. It is well-settled in a host of judicial pronouncements that the Appellate Court should be slow and watchful in interfering with an order of acquittal. It is only when the conclusions arrived at by the Trial Court is manifestly erroneous and palpably perverse, the Appellate Court should take a contrary view. It is more because an order of acquittal has the presumption of innocence in favour of the accused.
In the instant case, the complainant has alleged that the accused had issued Ext P6 cheque in his favour in discharge of a legally enforceable debt. The cheque, on presentation to the bank for encashment, got dishonoured due to ‘insufficient funds’ and despite receipt of the demand notice, the accused failed to pay the cheque amount. Hence, the accused committed the above offence - Indisputably, the complaint has been filed by the complainant ( Mathew K.Cherian represented by his power of attorney holder PW1) in his individual capacity. PW1 has not testified that the accused had any business transaction with the complainant in his individual capacity. Therefore, the learned Magistrate, on an appreciation of the oral testimonies of PW1 and DW1 and the materials on record, came to the legitimate conclusion that Ext P6 cheque was not issued towards a legally enforceable debt in favour of the complainant.
In the case on hand, in addition to the finding that there was no business transaction between the complainant and the accused as alleged in the complaint, there is also no specific assertion as to the competence and knowledge of PW1 as regards the alleged transaction between the complainant and the accused. Thus, the learned Magistrate has rightly concluded that Ext P6 cheque was not issued towards a legally enforceable debt.
On a re-appreciation of the materials on record, this Court is of the definite view that there is no error or illegality in the impugned judgment passed by the learned Magistrate holding the accused not guilty for the offence under Sec.138 of the N.I Act - appeal dismissed.
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2023 (10) TMI 1248 - KERALA HIGH COURT
Dishonour of Cheque - existence of legally enforceable debt - benefit of doubt to accused or not - presumption of consideration under Secs.118(a) and 139 of the N.I Act - HELD THAT:- In the case on hand, the complainant’s case is that, Ext.P8 cheque was issued by the accused in discharge of a legally enforceable debt and the cheque got dishonoured when presented for collection and the accused failed to pay the demanded amount, despite receipt of the statutory lawyer notice - The accused denied the allegation and has raised a defence that he has no business transaction with the complainant. Instead, Ext.P8 cheque was issued by him to DW1 to purchase computers. It was misutilising the cheque, the complainant filed the false complaint.
The courts below, after a threadbare analysis of the materials placed on record, have concurrently concluded that the accused had failed to shift the reverse onus of proof cast on his shoulders under Section 139 of the N.I. Act. Accordingly, the courts below found the accused guilty, and convicted and sentenced him for the above offence - There are no error, illegality or irregularity in the conclusion arrived at by the courts below. Thus, the conviction imposed by the courts below is confirmed.
In DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] the Hon'ble Supreme Court held that unlike other forms of crime, the punishment under Section 138 of the N.I. Act is not a means for seeking retribution, but is a means to ensure payment of money. Complainant's interest lies primarily in recovering the money rather than seeing the drawer getting incarcerated. In an offence under Section 138 of the N.I. Act, the compensatory aspect of the remedy should be given priority over the punitive aspect.
Thus lenient view as regards substantive sentence can be taken, by sentencing the revision petitioner to undergo imprisonment for one day(till the rising of the Court) and pay compensation for the cheque amount, which would do complete justice to both sides - revision petition is dismissed.
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2023 (10) TMI 1247 - KERALA HIGH COURT
Dishonour of Cheque - validity of convicting and sentencing the revision petitioner - insufficiency of funds - discharge of onus to prove existence of debt - It is submitted that, prosecution has miserably failed to establish the ingredients of Section 138 of the N.I.Act - HELD THAT:- It is trite that the revisional powers of this Court under Sections 397 to 401 of the Cr.P.C. is to be sparingly exercised and in cases of exceptional rarity. Unless there is manifest error, illegality or an apparent misreading of the records, this Court shall not interfere with the findings of fact rendered by the fact finding courts. Merely because a different view is possible, the revisional Court shall not substitute the views of the Trial/Appellate Courts.
The law has crystallized that once the complainant establishes the concoction of the five ingredients under Section 138 of the N.I.Act, then the reverse onus of proof shifts to the accused to set up a probable defence. If he discharges the onus of proof and casts a doubt about the existence of a debt, then the prosecution has to fail.
Thus, both Courts have failed to advert and discuss the oral testimonies of PW1 and DW1. Instead, the Courts have only discussed about Exts.P1 to P10 documents and concluded that the revision petitioner has not discharged the reverse onus of proof under Section 139 of the N.I. Act - there is no discussion regarding Ext.D1 reply notice, the statement of the revision petitioner u/s 313 of the Cr.P.C. and the testimonies of the defense witnesses and documents.
The courts below have misread the materials on record and have perfunctorily concluded that the revision petitioner has committed the offence u/s 138 of N.I. Act, which is improper, irregular and illegal, and warrants interference by this Court - revision petition is allowed.
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