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Indian Laws - Case Laws
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2024 (10) TMI 212
Criminal conspiracy - Recovery of amounts due - compoundable offences - settlement between the parties - whether the continuation of the criminal proceedings against the present appellants would be justified or not? - HELD THAT:- In the case of Nikhil Merchant [2008 (8) TMI 966 - SUPREME COURT], this Court was considering a civil dispute with certain criminal facets. The matter also involved offences which were not compoundable in nature. This Court, therefore, considered the question as to whether the criminal proceedings could be quashed under Article 142 of the Constitution of India on the basis of compromise, even where non-compoundable offences are involved.
This Court found that though the offence punishable under Section 420 of the IPC was compoundable under sub-section (2) of Section 320 CrPC with the leave of the Court, the offence of forgery was not included as one of the compoundable offences - This Court specifically noted that though it is alleged that certain documents had been created by the appellant therein to avail of credit facilities beyond the limit to which the Company was entitled, the power of quashing could be exercised. This Court found that in view of a compromise arrived at between the Company and the Bank, it was a fit case where a technicality should not be allowed to stand in the way of quashing of the criminal proceedings. This Court found that in view of the settlement arrived at between the parties, continuance of the same would be an exercise in futility.
The facts in the present case are similar to the facts in the case of Sadhu Ram Singla and others [2017 (2) TMI 1530 - SUPREME COURT] wherein a dispute between the borrower and the Bank was settled. In the present case also, undisputedly, the FIR and the chargesheet are pertaining to the dispute concerning the loan transaction availed by the accused persons on one hand and the Bank on the other hand. Admittedly, the Bank and the accused persons have settled the matter. Apart from the earlier payment received by the Bank either through Equated Monthly Instalments (EMIs) or sale of the mortgaged properties, the borrowers have paid an amount of Rs.3,80,00,000/- under OTS. After receipt of the amount under OTS, the Bank had also decided to close the loan account. The dispute involved predominantly had overtures of a civil dispute.
This was a fit case wherein the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quash the criminal proceedings - The impugned judgment and order passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh is quashed and aside - Appeal allowed.
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2024 (10) TMI 211
Seeking permission to reopen Complaint which was inadvertently withdrawn from the Court of learned Metropolitan Magistrate- 02 (South), Saket Court, New Delhi - Recovery of Award amount - dishonour of cheque - HELD THAT:- Though, the petitioner has claimed that it was due to inadvertence that first Complaint Case No. 469088/2016, for cheque amount of Rs. 51,13,692/- got withdrawn when the petitioner intended to withdraw the second Complaint Case No. 469085/2016 pertaining to the cheque for lesser denomination in the sum of Rs. 74,000/-. Though, the petitioner has tried to justify that this inadvertence happened on account of the two Complaint Cases being taken on the same day but the conduct of the petitioner, does not show that there was any inadvertence. Firstly, as observed above, some amounts of money have already been recorded as paid and only about Rs. 30-32 Lakhs was recorded to be outstanding. Therefore, the claim that there was an outstanding liability of Rs. 67,60,656/- by the petitioner, is not tenable.
Secondly, the petitioner having withdrawn the first Complaint case, approached the Mediation Centre but surprisingly, still did not come to know about the alleged inadvertence. Learned counsel for the petitioner has sought to explain by asserting that though the parties were referred to the Mediation Centre but no consensus of settlement was arrived at the Mediation Centre, consequently, the mediation failed.
The Application under Section 362 Cr.P.C. for recall of the Order dated 20.05.2022 was filed before the learned Metropolitan Magistrate after six months on 05.06.2023 and was dismissed on 28.11.2023. Such conduct of the petitioner again reflects that there was no inadvertence or else it would have acted promptly to rectify the alleged error - it is also pertinent to observe that having withdrawn the Complaint Case, the petitioner got the Execution Petition for recovery of the said amount revived, in regard to the Arbitration Award. It is quite apparent that the petitioner rather than perusing the remedy under the Complaint Cases for the recovery of the due, amount had chosen to pursue the matter further in the Execution of the Arbitral Award.
There is no merit in the present Petition which is hereby dismissed.
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2024 (10) TMI 210
Dishonour of Cheque - Account Frozen - no provision for dropping of proceedings was available in the Code of Criminal Procedure - stand of the respondent is that the situation was beyond his control as such, the respondent could not have been proceeded against for commission of offence under section 138 of the Act.
Whether the learned revisional court is right in returning a finding that the learned Magistrate has wrongly dismissed the application for dropping of proceedings? - HELD THAT:- The finding returned by the learned Revisional Court that the learned trial court has wrongly dismissed the application for dropping of proceedings in the complaint filed by the petitioner, is contrary to the settled proposition of law that once the Magistrate takes the cognizance and issues the process against the accused, then the Magistrate cannot put the clock back and drop the proceedings at the behest of the accused because there is no such provision in the Code of Criminal Procedure, permitting the Magistrate to recall his order, whereby he has taken the cognizance and issued process against the accused - the observation of the learned Revisional Court is contrary to law and, as such, it is held that the Revisional Court was not right in returning the finding that the trial court had wrongly dismissed the application for dropping of the proceedings filed by the respondent herein.
Whether the complaint for dishonour of cheque due to the reason ‘account frozen’ is maintainable under section 138 of the Act? - HELD THAT:- The cheque was issued on 01.07.2014 and the same was dishonoured on 14.07.2014 and in absence of any finding as to when the account was frozen i.e. whether the account was frozen prior to the issuance of the cheque or after the issuance of the cheque and further as to whether the accounts of the respondent was having sufficient amount to honour the cheque at the time of issuance of cheque or not and rightly so because there was no material before the Revisional Court to return any such finding, the petitioner herein could not have been knocked out of the court at the threshold. The learned Revisional Court has put the cart before the horse and has returned a finding which could have been returned only after the full-fledged trial. Rather, the onus would be on the respondent to prove that he was not aware about the freezing of the account when the cheque was drawn, the account was frozen due to reasons beyond his control and the account was having sufficient balance when the cheque was dishonoured.
In Vikram Singh vs. Shyoji Ram, [2022 (2) TMI 1475 - SC ORDER], the High Court had quashed the proceedings of the complaint under section 138 of the Act, as the witnesses had stated that the accused had not opened the account with the Bank but in the memo it was mentioned that the cheque was dishonoured due to the reason ‘Account Frozen’. The Hon’ble Supreme Court of India set aside the order passed by the High Court by observing that the “Account Frozen” would presuppose the existence of the account and it was premature to quash the compliant. The Hon’ble Supreme Court of India remanded the matter back for full-fledged trial.
This court is of the considered view that the complaint under section 138 of the Act is maintainable even if the cheque is dishonoured due to reason ‘Account frozen’ - Order of Revisional Court dated 09.05.2018 is set aside and the order of the trial court dated 14.11.2017 is restored. The matter is remanded back to the trial court and the trial court shall proceed in accordance with law - Petition allowed by way of remand.
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2024 (10) TMI 138
Prayer for quashing of the criminal proceedings - Section 482 of the Code of Criminal Procedure, 1973 - whether the continuation of the criminal proceedings against the present appellants would be justified or not? - HELD THAT:- In the matters arising out of commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute, the High Court should exercise its powers under Section 482 CrPC for giving an end to the criminal proceedings.
It is held that the possibility of conviction in such cases is remote and bleak and as such, the continuation of the criminal proceedings would put the accused to great oppression and prejudice.
Appeal allowed.
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2024 (10) TMI 137
Dishonour of Cheque - acquittal of accused - rebuttal of presumptions - case of petitioner is that the finding of acquittal ought to be reversed as the same is only based on conjectures, and not cogent evidence - HELD THAT:- It is trite law that a Court while considering the challenge to an order of acquittal, in exercise of jurisdiction under Section 378 of the CrPC, is empowered to reconsider the evidence on record and reach its own conclusions, however, it is to be kept in mind that there is a double presumption of innocence in favour of the accused. High Court ought to only interfere with the finding of acquittal if it finds that the appreciation of evidence is perverse.
It is also well settled that once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque/ respondent received the cheque in discharge of a legally enforceable debt or liability are raised against the accused.
On a perusal of the record, it is seen that right from the time of the framing of notice, the statement under Section 313 of the CrPC, and during the course of the trial, Respondent No. 2 denied issuing the cheque and his signatures on the cheque. It is seen that in order to buttress his claim, an application was moved by Respondent No. 2 seeking expert opinion for verification of the signature of Respondent No. 2 and comparison with those appearing on the impugned cheques. It is seen further that the application was allowed, and the original cheques were sent to CFSL for comparison with the admitted signature of Respondent No. 2 on account opening form, vakalatnama, and bail bond.
It is pertinent to note that the presumptions under Section 118 and 139 of the NI Act are not absolute, and may be controverted by the accused. In doing so, the accused ought to raise only a probable defence on a preponderance of probabilities to show that there existed no debt in the manner so pleaded by the complainant in his complaint/ demand notice or the evidence. Once the accused successfully raises a probable defence to the satisfaction of the Court, his burden is discharged, and the presumption ‘disappears.’ The burden then shifts upon the complainant, who then has to prove the existence of such debt as a matter of fact.
It is pertinent to note that in terms of the dictum of the Hon’ble Apex Court in RAJESH JAIN VERSUS AJAY SINGH [2023 (10) TMI 418 - SUPREME COURT], once Respondent No. 2 was able to raise a probable defence by either leading direct or circumstantial evidence to show that there existed no debt/liability in the manner as pleaded in the complaint/ demand notice/ affidavit-evidence, the presumption raised against him disappeared. It was then for the petitioner to prove as a matter of fact that there in fact existed a debt/liability.
Much emphasis has been placed by the petitioner on the fact that the learned Trial Court erred in observing that a sum of ₹5,00,000/- had already been repaid vide debit entry dated 04.03.2010 when the same was debited and not credited to the petitioner’s account. Upon a perusal of the impugned judgment, it is apparent that the learned Trial Court had merely made an observation that the petitioner had made an endeavor to prove the transfer of ₹5,00,000/- and the same was repaid vide debit entry dated 04.03.2010. It was further noted that apart from the said sum, no proof was led to establish that apart from ₹5,00,000/- there was any other advancement, albeit as per the petitioner’s own stand the loan was advanced through bank transfer.
The rationale behind the order of acquittal in the present case was not based on the observation whether the sum of ₹5,00,000/- was repaid or not but the fact that the petitioner had failed to prove that there existed any debt/liability on date, or show the mode and manner of the advancement of loan, or lead any evidence/documentary proof so as to establish how the sum of ₹48,00,000/- was advanced - the petitioner having failed to lead evidence to show the existence of the debt/liability, his contentions that the learned Trial Court erred in observing that ₹5,00,000 was credited, or that the presumptions under Section 118 and 139 of the NI Act were in his favour, do not bolster the case of the petitioner.
This Court finds no such perversity in the impugned judgment so as to merit an interference in the finding of acquittal. Consequently, this Court finds no reason to entertain the present petition - The present leave petition is accordingly dismissed.
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2024 (10) TMI 43
Appeal against the judgment of the National Consumer Disputes Redressal Commission (NCDRC) dismissing the appeals challenging the Maharashtra State Consumer Disputes Redressal Commission's order - HELD THAT:- Undisputedly an irrevocable power of attorney dated 6-7-2013 was executed by the appellants in favour of the Respondent No.2 along the JAV of the same date, pursuant to which the Respondent No.2 had undertaken to develop the land in question. It further appears that though allegedly the said power of attorney was revoked by the appellants vide the letter dated 12-8-2014, the JAV has not been revoked so far and the same still continues to be in force. As rightly submitted by the learned counsel for the respondents, in the letter daeted 12-8-2014, the appellants had stated to be not liable “Henceforth”, i.e. after the said letter was sent - It is also not denied that the appellants have not taken any action whatsoever against the respondent No.2 with regard to the alleged non-compliance of the terms and conditions of JAV by the said Respondent. Under the circumstances, it does not lie in the mouth of the appellants to say that the appellants are not liable for the acts of Respondent No.2.
The `NCDRC’ having considered all the issues with regard to the joint liability of the appellants as well as the Respondent No.2, there are no good ground to interfere with the same.
The Appeals being devoid of merits and are dismissed.
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2024 (10) TMI 42
Dishonour of Cheque - legally recoverable debt or not - rebuttal of presumption - petitioner has been convicted and sentenced under Section 138 Negotiable Instruments Act, 1881 - HELD THAT:- The first ground which has been taken on behalf of the petitioners is that the complainant has failed to step into the witness box and only CW1 Sh. Ritin Behl the SPA holder, who has been examined and he had not personal knowledge of the facts involved in the present case. First and foremost, even though CW1 Sh. Ritin Behl had deposed on the basis of an SPA but it is a settled law that irrespective of the Special Power of Attorney in favour of the witness, he is a competent witness to depose about the facts which are in his knowledge. Furthermore, the entire case under Section 138 N.I. Act was based on the documents - it was for the petitioners to have led cogent evidence in their defence, which they have miserably failed to do.
Once the signatures on the cheque were admitted, the presumption under Section 139 NI Act worked in favour of the complainant and the onus was on the petitioners/accused to prove that the cheques were not issued in discharge of the legally recoverable debt. However, neither the authenticity of the letter has been questioned in the cross-examination of CW1 nor is there any other cogent evidence brought to disprove that the cheque was not in discharge of any legally recoverable debt.
The Petitioner has been rightly convicted and sentenced. The impugned judgment of learned ASJ dated 13.05.2024 does not deserve any interference as it suffers from no infirmity - the present Revision Petition is hereby dismissed.
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2024 (9) TMI 1732
Seeking grant of regular bail - forgery, cheating, criminal conspiracy, and evidence tampering - reasonable or prima facie grounds to believe the petitioner's involvement in the alleged offences - registration of earlier FIR - No adversarial circumstances in status report - prolonged incarceration and trial to take time - grounds of parity - No apprehension by state authorities that petitioner may flee away or thwart cause of justice.
Registration of earlier FIR - HELD THAT:- This Court is of the considered view that mere registration of other FIRs or pendency of another matter, cannot by itself, be made the basis for continuing the detention endlessly or for prolonging the incarceration of the petitioner. Denial of bail merely, due to the registration of other FIRs-matters, shall certainly amount to not only curtailing and depriving the personal liberty of the petitioner enshrined in Article 21 of the Constitution of India but shall also amount to prolonging the custody, on basis of previously registered FIRs, which are still accusations and are yet to be examined, tested and proved during trial - in the instant case, once the State Authorities have not pointed out any adverse eventuality, in the Status Report, in relation to earlier FIRs-matters then, the plea for bail deserves to be accepted in peculiar facts herein.
No adversarial circumstances in status report - HELD THAT:- Claim for bail needs to be accepted, for the reason, that the State Authorities have not pointed out any other adversarial circumstances i.e. either by way of expressing any apprehension that the petitioner will flee away or may tamper with the evidence or cause any inducement or threat or promise to any person acquainted with the facts of the case. In the absence of any such adversarial circumstances having been pointed out by the State Authorities, the claim for bail carries weight and the same is accordingly accepted.
Bail - prolonged incarceration and trial to take time - Article 21 of the Constitution - HELD THAT:- Since the bail petitioner herein, has suffered incarceration for about six months now and even the conclusion of the trial is likely to take considerable time, therefore, this Court is of the considered view, that further detention of petitioner, shall certainly amount to implicating the petitioner on mere accusation or conjectures at this stage. The action of the State Authorities is dehors the object of bail, which is neither punitive nor preventative. Prolonging imprisonment before conviction has a substantial punitive content, which certainly amounts to depriving or curtailing the personal liberty of the petitioner enshrined in Article 21 of the Constitution of India.
Parity - Co-accused released on bail - HELD THAT:- The State Authorities have not disputed the fact that other co-accused, namely Suresh Chander, Prakash Veer Chauhan, Sohan Lal and Damandeep Singh have been enlarged on bail, who as per Status Reports were alleged to have acted as agents of the main accused [Parikshit Azad], whereas once the petitioner, has neither been named in the complaint nor any substantial material is borne out from the material on record which are yet to be tested, examined and proved during the trial therefore, in these circumstances, the petitioner deserves to be enlarged on bail.
No apprehension by state authorities that petitioner may flee away or thwart cause of justice - HELD THAT:- The Status Report does not indicate that the release of the petitioner will thwart the cause of justice and no apprehension expressing any possibility of the petitioner either fleeing away or cause any inducement, threat to any witness or persons acquainted with facts of case in any manner. However, this Court, still imposes the following stringent conditions against the bail petitioner.
Conclusion - Taking into account the entirety of facts and circumstances and the material on record as borne out from the Status Report and the stand of the petitioner vis-à-vis the prosecution story and other factors i.e. that the petitioner is in custody for last six months; and prolongation of detention shall certainly violates personal liberty; and further detention shall defeat the principle of "Bail is a Rule and Jail is an Exception"; and once no reasonable grounds exists against the bail petitioner, even as per the Status Report, is running a medicine whole sale business, having substantial transaction of more than Rupees Two Crores during 2020-2024 vis-à-vis the accusation of having received a sum of Rs. 13,72,236/- approx. and when, the veracity of such accusation is yet to be tested, examined and proved during the trial in accordance with law; and the fact that the Investigation is complete; and the Challan-Final Police Report has been filed before the competent Court; and nothing is to be recovered from the petitioner therefore, this Court is of the considered view, that any further detention or prolongation thereof shall certainly amount to pre-trial incarceration by way of punishment on the basis of mere accusation, which are yet to be proved, shall amount to incarcerating the petitioner on the basis of mere surmises-allegations. In these circumstances, the petitioner, at this stage, is entitled to be enlarged on bail.
The State Authorities are directed to release the petitioner, on bail, subject to fulfilment of conditions imposed - bail application allowed.
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2024 (9) TMI 1716
Reversal of acquittal judgment of the Trial Court and convicting the accused under Sections 143, 147, 148, 120B, and 302 read with 149 of the Indian Penal Code (IPC) - criminal conspiracy to murder - HELD THAT:- The High Court merely summed up the depositions of the so-called eyewitnesses and baldly concluded that the presence of the eyewitnesses, PWs 1 to 3, could not be doubted. Surprisingly, despite the Trial Court detailing, at great length, the contradictions and discrepancies in their depositions, the High Court observed that the Trial Court had not pointed out any major contradictions which would discredit the evidence of PWs 1 to 3 and the evidence of other witnesses. According to the High Court, the evidence adduced by the prosecution outweighed the findings recorded by the Trial Court, but no reasons worth the name were recorded by the High Court to support this conclusion. On the strength of these cryptic observations, the High Court deemed it fit to reverse the judgment of acquittal; hold the accused guilty of the offences as charged and sentence them to imprisonment for life.
Once the Trial Court found no evidence to convict the accused, the burden was upon the High Court, while reversing the said judgment, to record clear findings in relation to each of the charges and, more particularly, the charge of criminal conspiracy under Section 120B IPC. However, no such exercise was undertaken by the High Court. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka [2007 (2) TMI 704 - SUPREME COURT], regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal.
In Rajendra Prasad v. State of Bihar [1977 (2) TMI 142 - SUPREME COURT], a 3-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained.
The conviction of Appellant Nos. 1 and 2 on all charges set aside - appeal allowed.
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2024 (9) TMI 1710
Maintainability of petitions before the Governor and the complaints before the concerned Court - approval under Section 17A of the Act is mandatory or not - Section 17A of the Act requires only a Police Officer to seek approval from the Competent Authority - want of application of mind in the order of the Governor - sufficient reasons to be recorded in the file of the decision making authority and the same culled out in parts in the impugned order - decision taken by the Governor in alleged hottest haste of issuing a show cause notice on the same day of receipt of the petition has vitiated the entire decision or not - reference to Section 218 of BNSS in the impugned order vitiates the entire order - prima facie role of the petitioner is established or not.
Whether the petitions before the Governor and the complaints before the concerned Court were justified in the fact situation? - HELD THAT:- After cancelling the resolution it appears that a Technical Committee was appointed by Government to go into the illegalities of MUDA. The Technical Committee is said to have submitted its report highlighting huge corruption and fraud played by MUDA officials. When all these inquiries were going on a complaint comes to be registered by 3rd and 4th respondents before the jurisdictional police on 3-07-2024. The jurisdictional Police though acknowledged the complaint, did not take it further. On 12-07-2024 both the 3rd and 4th respondents register complaints before the Commissioner of Police. This was in compliance with clause (1) of sub-section (2) of Section 154 of the Cr.P.C.. Even then, no action is taken. The 4th respondent then approaches the Lokayukta on 26-07-2024 to register a complaint against the petitioner. When things stood thus, the 3rd and 4th respondents file their respective private complaints before the Special Court constituted exclusively to deal with criminal cases against MPs and MLAs. It is then, the 3rd respondent knocks at the doors of the Governor seeking approval/sanction to prosecute the petitioner as obtaining under Section 17A of the Act. The facts narrated would clearly justify the complaints/petitions by the complainants.
Whether the approval under Section 17A of the Act is mandatory in the teeth of facts? - Whether Section 17A of the Act requires only a Police Officer to seek approval from the Competent Authority? - HELD THAT:- This Court considered the importance and purport of Section 17A. The petitioner is a public servant and the allegations against him are wanting to be investigated into. If investigation has to ensue, it must pass through the gates of 17A. Therefore, an approval under Section 17A from the hands of the Competent Authority is imperative, as it is the mandate of the statute. Without an approval under Section 17A, no enquiry, inquiry or investigation can commence against a public servant.
The High Court has issued a circular to all the concerned Court, for implementation of the said directions. The approval under Section 17A of the PC Act is mandatory to be obtained, in the teeth of the obtaining facts. It is not necessary for the police officer to seek approval from the hands of the Competent Authority, in a private complaint. It is the complainant, whomsoever it is, should discharge the duty of seeking approval from the hands of the Competent Authority, a caveat, only in a private complaint registered under Section 200 of the Cr.P.C. or under Section 223 of the BNSS.
Whether the order of the Governor suffers from want of application of mind? - Whether it would suffice for reasons to be recorded in the file of the decision making authority and the same culled out in parts in the impugned order? - HELD THAT:-Whether the order of the Governor suffers from nonapplication of mind. The order that is communicated to the petitioner is quoted. Complete proceedings in the file maintained in the Secretariat of the Governor are also quoted supra. The Secretary of the Governor has communicated the decision of the Governor which thus contains all the material though excerpts of the decision. The decision runs into several pages. The entire file; the documents that are in the file run into 1200 pages are perused. The comparative chart of the complaint, replies and the analysis are in great elaboration. This Court is not testing the order passed by the Disciplinary Authority or an Officer of the State. It is testing the order passed by the high functionary. The high functionary in the case on hand is the Governor.
It is no doubt true that reasons cannot be supplied by way of statement of objections. That would be a situation where there are no reasons even in the file. Therefore, the said judgment would not become applicable to the facts of the case. Copious reasons are found in the file and even in the impugned order. There are no hesitation to hold that it does bear application of mind. Therefore, the submission of the learned senior counsel for the petitioner qua application of mind would tumble down like a pack of cards.
Whether the decision taken by the Governor in alleged hottest haste of issuing a show cause notice on the same day of receipt of the petition has vitiated the entire decision? - HELD THAT:- A feeble attempt is made by the learned senior counsel for the petitioner that the Governor refers to two other petitions, but no show cause notices were issued on those two petitions. Those petitions are of respondents 4 and 5. The Governor though in three lines of a particular paragraph observes that there are petitions of other petitioners also; he does not deliberate upon the contents of those petitions and it is no law that prior to grant of an approval under Section 17A the person against whom the approval is sought should be heard in the matter. If natural justice is stretched to the extent of hearing the person against whom a complaint is registered prior to registration of the crime it would be stretching it to an unimaginable extent. If the submission of the learned senior counsel for the petitioner is to be accepted, every person against whom approval is sought, a notice will have to be issued to the person against whom such approval is sought under Section 17A of the act. It is akin to hearing an accused before registering the FIR. This is not the purpose of law. Merely because the Governor has in the case at hand issues a show cause notice only to seek a reply from the hands of the petitioner or the Cabinet, it does not mean that it must comply with the principles of natural justice.
If the submission of the learned senior counsel for the petitoner is accepted, it would undoubtedly be stretching natural justice to an unnatural extent, as prior to registration of the crime, every accused will have to be heard. Likewise, prior to approval being granted, the person against whom approval is sought will have to be heard. This is turning the law topsy-turvy. Therefore, the multi-pronged attack on the order of the Governor, on the aforesaid contention/s, does not hold water, as none of the submissions of the learned senior counsel for the petitioner against the order of the Governor qua the approval under Section 17A are acceptable.
Whether reference to Section 218 of BNSS in the impugned order vitiates the entire order? - HELD THAT:- What was sought before the Governor in the petition filed by the 3rd respondent was in fact approval under Section 17A of the Act. Though the petition was worded sanction, it was in fact not a sanction, but an approval under Section 17A of the Act. The operative portion of the order of the Governor is indicative of the fact that both approval and sanction under Section 218 are granted. The crime is yet to be registered and investigated into. Therefore, granting of sanction under Section 218 of BNSS would not arise at this juncture as investigation itself is yet to take place. The learned Solicitor General has admitted that observation or grant of sanction under Section 218 of BNSS at this juncture was erroneous. The order could be considered only as an order under Section 17A of the Act. Therefore, no submissions are made qua Section 218 of BNSS by any of the counsel representing the parties. It is, therefore, it is deemed appropriate to restrict and read the order only as an approval under Section 17A of the Act and not an order for grant of sanction under Section 218 of BNSS.
Whether prima facie role of the petitioner is established? - HELD THAT:- The allegations would require investigation in the least, for the reason that if the petitioner was not in the seat of power, helm of affairs, the benefit with such magnitude would not have flown. It has highterto never flown to any common man, nor can it, in future flow. It is unheard of for a common man to get these benefits in such quick succession bending the rule from time to time. Therefore, the petitioner may not have put his signature, made a recommendation or taken a decision, for bringing him into the offence against him under the Act, but the beneficiary is not a stranger. The beneficiary of these acts is the wife of the petitioner. It is the open proclamation which is in public domain by the petitioner himself that if MUDA gives him Rs. 62 crores, he would give back the property. Therefore, merely because the wife of the petitioner has indulged in all these acts, legal or illegal, the petitioner cannot be said to be completely ignorant of what is happening in the life of his wife, qua these factors. It, prima facie, depicts stretching of the arms of undue influence and portrays abuse of power of the seat of the Chief Minister or any other post held by the petitioner.
Conclusion - i) The complainants were justified in registering the complaint or seeking approval at the hands of the Governor. ii) The approval under Section 17A of the PC Act is mandatory in the fact situation. iii) Section 17A nowhere requires Police Officer to seek approval in a private complaint registered under Section 200 of the Cr.P.C./223 of BNSS against a public servant for offences punishable under the provisions of the Act. It is the duty of the complainant to seek such approval. iv) The Governor in the normal circumstance has to act on the aid and advice of the Council of Ministers as obtaining under Article 163 of the Constitution of India, but can take independent decision in exceptional circumstances and the present case is one such exception. v) No fault can be found in the action of the Governor exercising independent discretion to pass the impugned order. vi) It would suffice if the reasons are recorded in the file of the decision making authority, particularly of high office, and those reasons succinctly form part of the impugned order. A caveat, reasons must be in the file. Reasons for the first time cannot be brought before the constitutional Court, by way of objections. vii) The Gubernatorial order nowhere suffers from want of application of mind. It is not a case of not even a semblance of application of mind, by the Governor, but abundance of application of mind. viii) Grant of an opportunity of hearing prior to approval under Section 17A is not mandatory. If the authority chooses to do so, it is open to it. ix) The decision of the Governor of alleged hottest haste has not vitiated the order. x) The order is read to be restrictive to an approval under Section 17A of the Act and not an order granting Sanction 218 of BNSS. xi) The facts narrated in the petition would undoubtedly require an investigation. In the teeth of the fact that the beneficiary of all these acts is not anybody outside, but the wife of the petitioner.
Application disposed off.
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2024 (9) TMI 1709
Seeking recall of order - HELD THAT:- This Court notes with pain that the DPSC has been taking contradictory stand and has not come at the early stage before this Court to indicate that they had not formally approved the consent communicated to this Court by their counsel.
Be that as it may, since the orders have been passed on consent and such consent has never been given in writing or given and withdrawn, this Court is inclined to recall the order dated 26th April, 2024.
All the review applications along with connected applications shall stand disposed of.
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2024 (9) TMI 1706
Seeking grant of bail under Section 439 of Cr.P.C. - prolonged detention - Whether the petitioner's extradition and the charges against him justify his continued detention without bail? - HELD THAT:- In Babu Singh and others vs. State of U.P. [1978 (1) TMI 171 - SUPREME COURT], inter alia held that a subsequent bail application is maintainable only if it is supported by additional material, further developments, or new considerations arising after the earlier application.
In State of M.P. v. Kajad [2001 (9) TMI 1129 - SUPREME COURT], the Supreme Courtinter alia held that while successive bail applications are permissible, they must be predicated on changed circumstances. It emphasized that without a change in circumstances, a second bail application would effectively seek a review of the prior decision, which is not allowed under criminal law.
Whether Section 467 IPC is made out or not will still need to be determined by the trial court at the stage of framing charges. A detailed examination of the facts should not detain this Court any further, as the matter has already been examined in detail in CHRISTIAN MICHEL JAMES VERSUS CENTRAL BUREAU OF INVESTIGATION [2022 (3) TMI 1632 - DELHI HIGH COURT]. This Court finds that there is no subsequent development or new material on record that would entitle the petitioner to bail. The grounds on which earlier bail application was dismissed still hold ground and there is no substantial change in the fact situation. Thus, Court is of the considered opinion that merely on period of incarceration, the accused cannot be admitted to bail as he is still a flight risk. However, learned trial court is requested to expedite the proceedings.
This Court finds that there are no new or fresh grounds in the current bail application. Furthermore, there has been no substantial change in facts and circumstances concerning the merits of the case.
The bail application is dismissed.
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2024 (9) TMI 1693
Seeking grant of bail - allegations are that the petitioner, who was Private Secretary to the Chief Minister of Delhi, assaulted the complainant-victim, who is a Member of Parliament for Rajya Sabha from Delhi, at the time when she entered the residence of the Chief Minister of Delhi - HELD THAT:- In the quest to strike a balance between `liberty’ on one hand and `a fair trial’ on the other, it is appreciated that the concern of the prosecution that the witnesses must be kept free from any kind of extraneous pressure or influence to enable them to depose fearleslly. It is satisfying that the desired protection can be afforded through various alternative measures including by imposing such reasonable terms and conditions which would prevent the propensity to influence the witnesses or tamper with the evidence. In any case, any such attempt by the beneficiary of a discretionary jurisdiction of the Court, will amount to misuse of concession of bail and the necessary consequences would, thus, follow.
Taking into consideration the totality of the circumstances, however, without expressing any opinion on the merits of the case, it is deemed appropriate to release the petitioner on bail - The petitioner is, accordingly, directed to be released on bail subject to such terms and conditions that may be imposed by the Trial Court.
Bail application allowed.
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2024 (9) TMI 1681
Validity of the sanction order can be challenged at any stage of the proceedings or not - violation of Section 45(2) of the UAPA r/w Rules 3 & 4 - violation of statutory timelines and requirement of independent review which includes application of mind - applicability of statutory exemption Under Section 22A of the UAPA.
Whether the Validity of the Sanction Order can be challenged at any stage? - HELD THAT:- The UAPA does not provide for any such saving of the sanction. This implies that, in the wisdom of the legislature, the inbuilt mechanism of the Act of having two authorities apply their mind to the grant of a sanction, is sufficient. This emphasizes the role and sanctity of the operation to be carried out by both these authorities. In order to challenge the grant of sanction as invalid, the grounds that can be urged are that (1) all the relevant material was not placed before the authority; (2) the authority has not applied its mind to the said material; and (3) insufficiency of material. This list is only illustrative and not exhaustive. The common thread that runs through the three grounds of challenge above is that the party putting forward this challenge has to lead evidence to such effect.
There are no hesitation in holding that while the treasured right of an Accused to avail all remedies available to him recognised under law, in ordinary circumstances challenge to sanction under UAPA should be raised at the earliest possible opportunity so as to enable the Trial Court to determine the question, for its competence to proceed further and the basis on which any other proceeding on the appellate side would depend on the answer to this question.
Whether a violation of Section 45(2) of the UAPA r/w Rules 3 & 4, if any, vitiates the proceedings? In other words, whether violation of - (a) statutory timelines and (b) the requirement of independent review which includes application of mind, are necessary aspects of procedure without which, any transaction under the UAPA shall be compromised to a point that its sanctity is rendered questionable? - HELD THAT:- The rules provide a seven day period within which the concerned authority is to make its recommendation on the basis of materials gathered by the investigating officer and a further seven days period for the government to grant sanction for prosecution, having considered the report of the authority - The ins and outs of the Appellant's contention is that the said timelines were not followed and, in fact, the first sanction was granted more than a year after the recommendation was moved. This contention ties into another submission that there was no independent review on the part of both recommending authority and central government, as the sanction was merely granted within a day each.
Whether timelines were directory or mandatory? - HELD THAT:- The observations in VIJAY RAJMOHAN VERSUS STATE REPRESENTED BY THE INSPECTOR OF POLICE [2022 (10) TMI 1267 - SUPREME COURT] regarding the power of sanction being open to the standard principle of judicial review; the same being inbuilt in our legal structure; public confidence being at stake if a rule of law is violated, are principles that in our considered view it will apply equally to sanctions under UAPA. In context of the PC Act, it has been held that non- compliance of a mandatory period cannot ipso facto lead to quashing of criminal proceedings. This is where a difference emerges between the PC Act and the UAPA. The implication, social as well as legal of both these acts diverges, in as much as the latter entails far graver consequences. The UAPA provides for a detailed procedure which is to be followed in granting of sanction and undoubtedly, the same must be followed in absolute letter and spirit.
Section 52 of the UAPA grants power to the Central Government to make Rules for the purpose of carrying out the provisions of the Act. Specifically, Section 52(2)(ee) deals with the present situation, i.e., enables the Government to prescribe the time for recommendation and grant of sanction Under Section 45. The 2008 Rules are unequivocal in both, using the word 'shall' as also providing a specific time period for both activities, i.e., making recommendation and granting sanction.
In matters of strict construction, when a timeline is provided, along with the use of the word 'shall' and particularly when the same is in the context of a law such as the UAPA, it cannot be considered a mere technicality or formality. It demonstrates clear intention on the part of the Legislature. A compulsion has been imposed, and for compliance with that compulsion, a timeline has been provided. While the legislation is aimed at curbing unlawful activities and practices detrimental to national security and accordingly, provides the authorities of the Government ample power to undertake and complete all procedures and processes permissible under law to that end, at the same time the interest of Accused persons must also be safeguarded and protected. It is expected of the Executive, in furtherance of the ideal of protection of national security, that it would work with speed and dispatch - There have to be certain limitations within which administrative authorities of the Government can exercise their powers. Without such limitations, power will enter the realm of the unbridled, which needless to state is, antithetical to a democratic society. Timelines in such cases, serve as essential aspects of checks and balances and of course, are unquestionably important.
Independent review - bone of contention in this regard is that since both the recommending and the granting authorities took merely a day each in performing their respective functions, the requirement of an independent review which is to be undertaken by both authorities has been left unfulfilled thereby vitiating the sanction in question - HELD THAT:- The import of the term independent review as can be understood from the above is a re-examination, scrutiny or critique of something which is not dependent or subject to control by any other factor or authority. In the present facts, independent review would mean a contemplation or study of the material gathered by the investigating officer to conclude as to whether or not a sanction to proceed under the provisions of the UAPA ought to be granted. Similarly, at the next stage, the sanctioning authority is to mull over and critically notice both the materials gathered as also the conclusion drawn by the recommending authority, in its act of granting sanction - The legislative intent in bringing about the aspect of independent review, by way of an amendment brought into effect from 31st December 2008, within Section 45 of the UAPA is required to be noticed.
There is nothing on record to show that relevant material was not placed before the authorities. There is no question, as there rightly cannot be, on the competence of either of the authorities. Therefore, solely on the ground that the time taken was comparatively short or even that other orders were similarly worded cannot call the credibility of the sanction into question - independent review as well as application of mind are questions to be determined by way of evidence and as such should be raised at the stage of trial, so as to ensure that there is no undue delay in the proceedings reaching their logical and lawful conclusion on these grounds.
An order passed by an administrative authority is not to be tested by way of judicial review on the same anvil as a judicial or quasi-judicial order. While it is imperative for the latter to record reasons for arriving at a particular decision, for the former it is sufficient to show that the authority passing such order applied its mind to the relevant facts and materials - It is not incumbent upon such authority to record detailed reasons to support its conclusion and, as such, the orders challenged herein, cannot be faulted with on that ground.
Misjoinder of Charges and Violation of Code of Criminal Procedure - HELD THAT:- Naseeb Singh [2021 (10) TMI 1409 - SUPREME COURT] holds that a separate trial would not be contrary to law unless a miscarriage of justice can be demonstrated. Similarly, a joint trial, if held, after having considered the two factors given above, cannot be said to be ipso facto prejudicial to the parties.
Whether, in the facts, the statutory exemption Under Section 22A of the UAPA applies to the Appellant who claims to be unaware of the affairs of the company? - HELD THAT:- For Section 22A to apply : (a) offence has to committed by a company; (b) all persons who at the time of the offence were in control of, or responsible for, the company's affairs shall be deemed guilty; (c) such person would be saved from guilt as under (b) if they can demonstrate that such act was (i) not in their knowledge; (ii) they had taken reasonable care to prevent such offence from taking place. The section further provides that if it can be proved that the offence committed by the company was (1) with consent; (2) in connivance of; (3) attributable to neglect on the part of any promoter, director, manager, secretary or any other officer of the company, then they shall be held guilty - this Court cannot, at this stage, decide whether Section 22A applies to the Appellant or not. This is once again a matter for evidence.
Conclusion - i) The validity of sanction should be challenged at the earliest instance available, before the Trial Court. If such a challenge is raised at an appellate stage it would be for the person raising the challenge to justify the reasons for bringing the same at a belated stage. Such reasons would have to be considered independently so as to ensure that there is no misuse of the right of challenge with the aim to stall or delay proceedings.
ii) The timelines mentioned in Rules 3 & 4 of the 2008 Rules are couched in mandatory language and, therefore, have to be strictly followed. This is keeping in view that UAPA being a penal legislation, strict construction must be accorded to it. Timelines imposed by way of statutory Rules are a way to keep a check on executive power which is a necessary position to protect the rights of Accused persons. Independent review by both the authority recommending sanction and the authority granting sanction, are necessary aspects of compliance with Section 45 of the UAPA.
iii) Sections 218-222, Code of Criminal Procedure, are not violated.
iv) Whether or not the exemption Under Section 22A applies is a matter to be established by the way of evidence for the person claiming such exemption has to demonstrate that either he was not in charge of the affairs of the company which has allegedly committed the offence, or that he had made reasonable efforts to prevent the commission of the offence. This, once again, is a matter for the Trial Court to consider and not for this Court to decide at this stage, keeping in view that the trial is underway and proceeded substantially.
Appeal dismissed.
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2024 (9) TMI 1588
Seeking a decree for specific performance of an agreement to sell - alternative relief of recovery of earnest money and damages - relief of permanent injunction - cause of action arisen to the plaintiff for filing of present suit or not - suit is bad for non-joinder of necessary parties or not - estoppel by own act and conduct from filing the present suit - HELD THAT:- It is trite law that jurisdiction under Article 136 of the Constitution of India should not be exercised unless the findings on facts recorded by the Courts below suffer from perversity or are based on omission to consider vital evidence available on record.
The respondent-plaintiff filed the subject suit with a pertinent assertion that the disputed agreement was executed by the appellant-defendant for sale of his agricultural land admeasuring 30 Kanals and 8 Marlas at the rate of Rs.5,00,000/- per Killa. As per the recital in the agreement, the respondent-plaintiff paid a sum of Rs.16,00,000/- in cash to the appellant-defendant at the time of the execution of the disputed agreement.
It is not in dispute that the stamp papers were not purchased by the appellantdefendant and rather Amarjeet Singh was the person who purchased the same. The document was typed out in Gurmukhi language and the photostat copy thereof is available on record. A visual overview of the disputed agreement would show that it runs into three pages. The signature of the respondent-plaintiff, and the thumb impression of the appellant-defendant are marked only on the last page thereof. The first and second pages of the agreement, do not bear the signature of the respondent-plaintiff or the thumb impression of the appellant-defendant. There exist significant blank spaces at the foot of the first two pages below the transcription typed out on these two pages.
As per the disputed agreement, the appellant-defendant agreed to sell the suit land to the respondent-plaintiff @ Rs. 5,00,000/- per Killa, which was just about half of the market rate of the land at the relevant point of time, as admitted by the respondent-plaintiff. Going by the rate as fixed in the disputed agreement, the total sale consideration would have amounted to approximately, Rs.18,87,000/-. The disputed agreement recites that the appellant-defendant had received earnest money to the tune of Rs.16,00,000/- for the purpose of doing agriculture and to buy cheaper and better land nearby. Thus, a lion’s share of the sale consideration was already paid to the appellant-defendant at the time of the execution of the disputed agreement and the remaining amount was hardly 15% of the total value of the suit land as agreed upon between the parties. Therefore, it does not stand to reason that the respondent-plaintiff being a Police Constable would part with a huge sum of Rs.16,00,000/- towards a transaction to purchase land and thereafter, agree to defer the execution of the sale deed to a date almost 16 months later with the balance amount being a fraction of the total sale consideration.
The circumstances, the evidence of the respondent-plaintiff; the disputed agreement and the plaint clearly indicates that the disputed agreement seems to have been prepared on a blank stamp paper on which, the thumb impressions of the illiterate appellantdefendant had been taken prior to its transcription. The large blank spaces on the first and second pages of the disputed agreement and the absence of thumb impression/signatures of the parties and the attesting witnesses on these two pages, fortifies the conclusion that the disputed agreement was transcribed on one of the blank stamp papers on which the thumb impression of the appellant-defendant had been taken beforehand.
The respondent-plaintiff admitted that he did not seek permission from his department before entering into the agreement for purchase of property having high value. It is not the case of the respondent-plaintiff that he and the appellantdefendant were on such close terms that he would readily agree to give cash loan to the appellant-defendant without any security.
The factors are sufficient for this Court to conclude that the entire case of the respondent-plaintiff regarding the execution of the disputed agreement; the alleged payment of Rs. 16,00,000/- in cash to the appellant-defendant on 7th May, 2007 and the alleged appearance of the respondent-plaintiff in the office of the Sub-Registrar in the purported exercise of getting the sale deed executed in terms of the disputed agreement is nothing but a sheer piece of fraud and concoction - there cannot be any escape from the conclusion that the judgment and decree dated 18th February, 2013 rendered by the trial Court, judgment dated 20th March, 2017 passed by the First Appellate Court and the judgment dated 25th April, 2018 rendered by the High Court suffer from perversity on the face of the record and hence, the same cannot be sustained.
Appeal allowed.
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2024 (9) TMI 1587
Auction sale pertaining to the immovable property - valuation of the property of the society (under liquidation) and the upset price were fixed on the lower side - three bidders had not participated in the auction sale - mala fide could be attributed in respect of the questioned auction sale or not - whether auction purchaser was not a private individual but a body established under the statute, i.e., the Agricultural Produce Market Committee, Rahuri? - HELD THAT:- The appellant was seized of the report of a Government approved valuer who valued the property of the society in excess of ₹4 crore in the year 2013. Since prices of immovable properties seldom decline with passage of time, what was expected of the appellant was to seek interference of the High Court as soon as the auction sale notice dated 12th February, 2016 was published. In its letter dated 2nd March, 2016, the appellant did not object to the valuation. The auction sale notice dated 12th February, 2016 was duly published in the newspapers and did bear reflection of the valuation of the property put up for sale with the upset price, yet, the appellant remained in slumber. It has never been the case of the appellant that it had no notice/knowledge of such notice - It is failed to comprehend as to what prevented the appellant, if at all it was aggrieved by the undervaluation of the property as shown in the notice, to take immediate recourse to available legal remedies to stall the process. The explanation that the appellant was busy in obtaining information after the auction sale was conducted for launching an attack on the process of sale could be correct on facts but by that, precious time was lost.
Law is well-settled that a writ court does not encourage petitions from indolent, tardy and lethargic litigants; the writ court comes to the aid of a litigant who approaches it with promptitude and before accrual of third-party rights - That possession of the property had not been taken by the appellant or that its name was not entered in the revenue records are of no significance having regard to the discernible conduct of the appellant in allowing things to drift to its detriment. Thus, the matters which have settled for long ought not to be unsettled.
The escalation of price, demonstrated by the appellant, is not surprising. The respondent no. 6 did not contest such facts and figures, probably because the High Court was not inclined to interfere and did not call for a sur-rejoinder. But merely because the respondent no.6 is a creature of a statute, that would not clothe it with any immunity and to have a property transferred to it at a throw away price. After all, the appellant’s status has also to be borne in mind. It is not a private bank but a Co-operative Bank, which has been brought into existence with specific objects and purposes in mind. The interest of the appellant, when its outstanding dues recoverable from the society runs into crores of rupees, cannot be brushed aside and deserves due consideration in order to keep the appellant survive in the banking sector.
Thus, it would only be just and fair to invoke powers conferred by Article 142 of the Constitution of India. Invoking such power and with a view to do complete justice between the parties, the respondent no.6 is directed to pay to the appellant a sum of ₹1,05,98,710/- (without interest) towards full and final settlement of the dues of the appellant from the society - appeal disposed off.
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2024 (9) TMI 1586
Scope of powers of the Appellate Court under Section 37 of Arbitration and Conciliation Act, 1996 - whether the Appellate Court was justified in setting aside the award dated 08.11.2012 which had already been confirmed under Section 34 of the Act? - HELD THAT:- Recently a three-Judge Bench in Konkan Railway Corporation Limited v. Chenab Bridge Project Undertaking [2023 (8) TMI 1227 - SUPREME COURT] referring to MMTC Limited [2019 (2) TMI 1085 - SUPREME COURT] held that the scope of jurisdiction under Section 34 and Section 37 of the Act is not like a normal appellate jurisdiction and the courts should not interfere with the arbitral award lightly in a casual and a cavalier manner. The mere possibility of an alternative view on facts or interpretation of the contract does not entitle the courts to reverse the findings of the arbitral tribunal.
The scope of the intervention of the court in arbitral matters is virtually prohibited, if not absolutely barred and that the interference is confined only to the extent envisaged under Section 34 of the Act. The appellate power of Section 37 of the Act is limited within the domain of Section 34 of the Act. It is exercisable only to find out if the court, exercising power under Section 34 of the Act, has acted within its limits as prescribed thereunder or has exceeded or failed to exercise the power so conferred. The Appellate Court has no authority of law to consider the matter in dispute before the arbitral tribunal on merits so as to find out as to whether the decision of the arbitral tribunal is right or wrong upon reappraisal of evidence as if it is sitting in an ordinary court of appeal - The arbitral award is not liable to be interfered unless a case for interference as set out in the earlier part of the decision, is made out. It cannot be disturbed only for the reason that instead of the view taken by the arbitral tribunal, the other view which is also a possible view is a better view according to the appellate court.
In the case at hand, the arbitral award dated 08.11.2012 is based upon evidence and is reasonable. It has not been found to be against public policy of India or the fundamental policy of Indian law or in conflict with the most basic notions of morality and justice. It is not held to be against any substantive provision of law or the Act. Therefore, the award was rightly upheld by the court exercising the powers under Section 34 of the Act. The Appellate Court, as such, could not have set aside the award without recording any finding that the award suffers from any illegality as contained in Section 34 of the Act or that the court had committed error in upholding the same. Merely for the reason that the view of the Appellate Court is a better view than the one taken by the arbitral tribunal, is no ground to set aside the award.
The Appellate Court committed manifest error of law in setting aside the order passed under Section 34 of the Act and consequently the arbitral award dated 08.11.2012 - the impugned judgment and order dated 10.01.2017 passed under Section 37 is hereby set aside and the arbitral award dated 08.11.2012 is restored to be implemented in accordance with law - Appeal allowed.
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2024 (9) TMI 1585
Requirement of GST registration for a bidder in respect of the concerned NIT - Cancellation of bids of petitioner - While, as per the petitioners, such registration is not required and could not be insisted upon, the stand of the Corporation is that such registration is mandatory - HELD THAT:- Law is well settled that in matters of tender, the role of the Court should be restricted and unless the impugned action is palpably unreasonable or vitiated by mala fide, interference is to be avoided as it causes delay which has cascading effect on the public interest.
From the documents annexed to the petition, the registered offices of the petitioners appear to be in various locations in the State of West Bengal. It is not understood as to why all the 9 (nine) petitioners could have a particular address in the State of Assam. The address is also apparently wholly vague.
This Court has noticed that even the affidavit accompanying the writ petition is not in accordance with law. The deponent claims to be the Director of the petitioner no. 1 and the authorized signatory of the petitioner’s Company. However, there is no statement that the deponent has been authorized by the other petitioners. Though certain certificates have been annexed regarding such authorization, in absence of a statement in the affidavit, the same would not be sufficient. It is needles to state that in a writ petition, the affidavit is of paramount importance as there is no further scope of adducing evidence or cross-examination.
Apart from the aspect of lacking in merits in the instant writ petition, the conduct of the petitioners in approaching a Court of Equity is not above board.
The writ petition stands dismissed.
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2024 (9) TMI 1488
Dishonour of cheque - Seeking to set aside Summoning Order - petitioner described as managers and are the wives of the Directors - accused or not - Petitioners' role in the functioning of the company - appellants are busy with the day-to-day affairs of the Company - vicarious liability under Section 141 of the NI Act to the Petitioners.
Whether the Petitioner herein, who have been described as managers and are the wives of the Directors, can be arrayed as accused or not? - HELD THAT:- The Principal accused is the company, i.e. M/s RBT Pvt. Ltd., and Accused No.2, 3, 4, 5 & 6 are the Directors of the Accused No. 1 company; Accused No. 7 & 8 are the Petitioners herein, who have been described as Managers - There is no averment in the Complaint that the Petitioners herein were involved in the transaction against which the cheques in question were issued. There is no averment in the complaint as to what is the role of the Petitioners herein in the functioning of the company.
It is well settled that there is no vicarious liability in the criminal law. Section 141 of the NI Act has an explanation which postulates that if the persons an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
The requirement of sub-section (1) of Section 141 of the NI Act is something different and higher. Every person who is sought to be roped in by virtue of sub-section (1) of Section 141 of the NI Act must be a person who at the time the offence was committed, was in charge of and was responsible to the Company for the conduct of the business of the Company. Merely because somebody is managing the affairs of the Company, per se, he does not become in charge of the conduct of the business of the Company or the person responsible for the Company for the conduct of the business of the Company. For example, in a given case, a manager of a Company may be managing the business of the Company. Only on the ground that he is managing the business of the Company, he cannot be roped in based on sub-section (1) of Section 141 of the NI Act.
Petitioners' role in the functioning of the company - appellants are busy with the day-to-day affairs of the Company - HELD THAT:- The allegation that they are in charge of the Company is neither here nor there and by no stretch of the imagination, on the basis of such averment, one cannot conclude that the allegation of the second respondent is that the appellants were also responsible to the Company for the conduct of the business. Only by saying that a person was in charge of the Company at the time when the offence was committed is not sufficient to attract sub-section (1) of Section 141 of the NI Act - On a plain reading, it is apparent that the words “was in charge of” and “was responsible to the Company for the conduct of the business of the Company” cannot be read disjunctively and the same ought be read conjunctively in view of use of the word “and” in between."
Thus, what would apply to a Director should also apply to a Manager and in the present case, the Petitioners are only the wives of the Accused No. 3 & 4 in the complaint. There is nothing in the Complaint which shows that there is any role of the Petitioners herein the day-to-day functioning of the company. In the absence of any specific averment against the Petitioners herein in the complaint, this Court is of the opinion that the complaint against the Petitioners cannot be sustained.
Petition disposed off.
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2024 (9) TMI 1487
Dismissal from service without inquiry - whether a conviction of an employee under the Negotiable Instruments Act would involve moral turpitude? - HELD THAT:- The Hon’ble Kerala High Court (Division Bench) in the case of Saseendran Nair [1995 (5) TMI 296 - KERALA HIGH COURT], has laid that an offence under Section 138 of the Act need not necessarily take within its wings the offence of cheating as per the Indian Penal Code. It has further been held that the question whether the act of issuing a cheque without sufficient funds will involve moral turpitude has to be considered de hors the element of cheating. Reference has also been made to the Corpus Juris Secendum as per which, moral turpitude implies something immoral in itself, regardless of whether it is punishable by law as a crime, since an act may involve moral turpitude even though it is not a crime. It further states that the term moral turpitude "does not refer to conduct which, before it was made punishable as a crime, was generally regarded as morally wrong or corrupt, as offensive to the moral sense as ordinarily developed.”
Though the past conduct may be a relevant consideration in a matter of this nature, when there was no enquiry and the dismissal is only on the account of a conviction by a Court without framing any definite charges, the aforesaid would not be a relevant consideration. This Court is fortified in reaching to the above conclusion in as much as the impugned order of dismissal dated 17.10.2014 does not refer to any past conduct of the petitioner and is issued only on the basis of the conviction of the petitioner in a proceeding under Section 138 of the NI Act.
This Court is unable to agree with the procedure adopted for imposing the penalty of dismissal vide the impugned order dated 17.10.2014 and accordingly the same is set aside. Consequently, the petitioner is directed to be reinstated in service.
Petition allowed.
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