|
Advanced Search Options
Indian Laws - Case Laws
Showing 401 to 420 of 27626 Records
-
2024 (9) TMI 1406
Liability to pay stamp duty and penalty on the agreements to sell executed prior to the sale deed executed in favour, in respect of two properties - determination of real and true meaning of the instrument by ascertaining the intention of the parties from the contents and the language employed in the whole instrument - HELD THAT:- Section 4(1), makes it clear that where several instruments are executed for completing a transaction, the principal instrument alone shall be chargeable with duty prescribed in Schedule I. The proviso makes it clear that the duty chargeable on the instrument so determined shall be the highest duty which could be chargeable in respect of any of the said instruments forming part of the same transaction. Each of the other instruments is chargeable with a fixed duty. That apart, sub-section (2) also gives an opportunity to the parties to determine for themselves, which of the instruments shall be deemed to be the principal instrument.
In the instant case, in the documents, though there was a clause for conveyance between the vendors and purchasers in relation to the respective properties, the value of the properties were above Rs.100/- and there was also a clause by which possession was admittedly handed over on the date of the agreement, implying acquisition of possessory rights protected under Section 53A of the Transfer of Property Act, which requires payment of proper stamp duty and registration as mandated under Section 17 of the Registration Act - Even considering the contention of the appellant, that the sale agreements ultimately concluded in the sale deed on which stamp duty was paid, would not by ipso facto absolve the primary liability of paying the appropriate stamp duty at the time of execution of the sale agreement as it was the principal document. Therefore, Section 4 of the Act cannot come to the aid of the appellants. Therefore, all these six documents ought to have been necessarily stamped and registered.
The trial Court rightly observed that the subsequent sale deed cannot be construed as a principal transaction and the agreements to sell would be treated as the principal conveyance as per Explanation I of Article 25 of Schedule-I of the Act and impounded all these documents and directed to send the same to the Collector for adjudication of stamp duty and penalty. After, a detailed analysis, the High Court held that no case for interference was made out by the appellants, which, we affirm, to be correct.
There are no reason to interfere with the orders passed by the Courts below. Accordingly, this appeal fails and is dismissed.
-
2024 (9) TMI 1405
Denial of promotional benefits - Adoption of sealed cover procedure - Whether by the mere grant of prosecution sanction, it could be said that the prosecution for a criminal charge is pending against the respondent Government Servant and whether grant of sanction for prosecution could be a valid ground for putting the DPC recommendations in a sealed cover?
HELD THAT:- The disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after issuance of the charge-memo/charge-sheet is issued. The pendency of investigation and grant of prosecution sanction will not be sufficient to enable the authorities to adopt the sealed cover procedure.
It is not in dispute that the sanction to prosecute the respondent was granted on 2nd June, 2006 and the charge sheet was filed by CBI, after completion of investigation on 25th October, 2008, whereas the DPC to consider the promotion of Additional Commissioners of Income Tax was convened on 22nd February, 2007, wherein the sealed cover procedure was adopted qua the respondent. It is thus clear that the charge sheet against the respondent was filed well after the meeting of the DPC was convened. Hence, it could not be said that the prosecution for a criminal charge was pending against the respondent when the DPC was convened. Therefore, the move on the part of DPC to resort to the sealed cover procedure was unjustified and unsustainable on facts and in law.
There are no hesitation in holding that the impugned judgment of the High Court dated 26th April, 2013 is based on apropos consideration of facts and law and hence the same does not warrant interference.
The ‘Sealed Cover’ wherein the assessment of the respondent was considered by the DPC was presented to the Court by learned counsel for the appellant and was opened. The letter shows that the DPC assessed the respondent to be ‘FIT’ for promotion. Consequential steps in light of the above recommendations shall follow - appeal dismissed.
-
2024 (9) TMI 1404
Dishonour of Cheque - legally enforceable debt or not - quashing of summons issued based on factual defences - whether the security cheques given by the petitioner were towards any future consideration or legally enforceable debt? - HELD THAT:- It is relevant to note that this Court can quash the summoning orders issued in NI Act cases in the exercise of its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) if such unimpeachable material is brought forth by the accused persons which indicates that they were not concerned with the issuance of the cheques or that no offence is made out from the admitted facts.
The Hon’ble Apex Court in the case of Rathish Babu Unnikrishnan v. State (NCT of Delhi) [2022 (4) TMI 1434 - SUPREME COURT] had discussed the scope of interference by the High Court against the issuance of process under the NI Act held that 'to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the trial court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited.'
In the case of Sunil Todi and Others v. State of Gujarat and Another [2021 (12) TMI 175 - SUPREME COURT], the cheques were issued by the accused as a security deposit under a power supply agreement, and on non-payment of the amount, the cheques were dishonoured on its presentation. It was contended on behalf of the accused that the cheques were intended at all material times to be security towards debt and were not intended to be deposited and would not attract the provisions of Section 138 of the NI Act on its dishonour.
Section 138 of the NI Act specifically mentions that the cheque must have been issued for discharge of not only any debt but can also be for “other liability”. It is, therefore, not necessary that when the cheques are issued, the drawer had any debt to discharge on the date of issuance - the allegations made in the complaint, at the stage when the complaint is sought to be quashed at the initial stage, are to be taken as correct unless evidence of unimpeachable character has been produced.
When there is a legal presumption and where facts are contested, it would not be judicious for the Court to separate the wheat from the chaff under the garb of inherent powers. It has been held time and again that the power of quashing criminal proceedings while exercising power under Section 482 of the CrPC should be exercised sparingly and with circumspection.
This Court finds that the petitioner, at best, has raised question of fact mixed with question of law which cannot be examined in the limited jurisdiction under Section 482 of the CrPC, for it is desirable that the same be left to be adjudicated upon based on the evidence led by both sides at the trial - Petition dismissed.
-
2024 (9) TMI 1403
Auction purchaser of secured asset - Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- The Judgment of the Apex Court in GOVIND KUMAR SHARMA & ANR. VERSUS BANK OF BARODA & ORS. [2024 (5) TMI 364 - SUPREME COURT] was rendered in the circumstances where the entire money has been refunded and there has been no issue of delivery of possession of property. In the instant case respondent-bank as already noted above has undertaken the endeavour to deliver possession of the subject property to the petitioner. In that view of the matter this Court do see any justification in petitioner claiming compound interest on the amount deposited. However, this Court is of the considered view that petitioner is entitled for simple interest at the rate of 12% p.a. for the period claimed in the writ petition.
Petition disposed of.
-
2024 (9) TMI 1352
Seeking laying down appropriate guidelines to be followed by all including the police officials and Judicial Magistrate to desist from initiating or directing initiation of criminal proceedings - HELD THAT:- In the case on hand, the Enforcement Directorate, New Delhi, was impleaded as a party respondent in the writ petition on 04.07.2023, by way of the final order disposing of the case. The final order was passed without putting it on notice and affording it an opportunity of hearing. Therefore, the directions of this Court in the said order in relation to ECIR No. ECIR/HIU-1/06/2023 cannot be sustained. More so, as the final order only records that the interlocutory applications for impleadment and to bring on record additional facts were allowed and no more.
Further, though this Court relegated the writ petitioners to the jurisdictional High Courts for challenging the FIRs registered against them, certain errors crept in by oversight while doing so. As regards FIR No. 197 of 2023, this Court directed that no coercive steps should be taken in relation thereto against the petitioner financial institution and its people till final disposal of such a petition by the High Court. Having said that, this Court went on to observe that it would be open to the writ petitioners to seek stay of proceedings in relation thereto, which was to be considered by the High Court on merits.
When a party is relegated to the High Court to pursue its remedies, it would not be proper, in the normal course, to bind the said High Court with directions in relation to the proceedings to be impugned before such Court. Ordinarily, this Court would leave all issues open for the party so relegated to raise and pursue before the High Court.
The miscellaneous applications and the interlocutory applications are disposed of accordingly.
-
2024 (9) TMI 1315
Requirement to pay the requisite amount towards compensation as determined in the Supplementary Award - Scheme of Arrangement between the Appellant and JAL under Sections 391 to 394 of the Companies Act, 1956 - HELD THAT:- A bare reading of Section 38 of Companies Act, 2013 indicates that the payment of full and final compensation to the land owners is a precursor to taking possession of the land sought to be acquired from such persons. It is clear from the facts that the acquisition proceedings herein failed to confirm to this statutorily mandated sequence of events. It is regrettable that the State of Himachal Pradesh, being a welfare state, did not ensure payment of compensation to the Respondent Nos. 1-6 before taking possession of their land. In fact, the landowners had to approach the High Court to seek directions to the LAC for passing of the supplementary award which was finally passed on 02.05.2022 that is, after a period of almost four years from the date of passing of the Award of 2018.
Section 41 necessitates an agreement between the appropriate government and the company for whose purpose the land is being acquired. One of the purposes of such an agreement is to ensure that payment towards the cost of acquisition is made by the company to the appropriate government and it is only upon such payment that the land is transferred to the company. Thus, it can be said that JAL was mandated to make the requisite payment to the State of Himachal Pradesh prior to the subject land being transferred to it.
Thus, even before the amount of compensation could be determined by way of a supplementary award as stipulated in the Award dated 08.06.2018, the subject land stood transferred to JAL - this is in contravention of Section 38 of the 2013 Act and Section 41 of the 1894 Act respectively.
The impugned order dated 12.07.2022 passed by the High Court is set aside - appeal allowed.
-
2024 (9) TMI 1300
Whether the arbitral award is in conflict with the public policy of India, or/ and is vitiated by patent illegality appearing on the face of the award?
Gita Power (R-2) could have been subjected to arbitration and made jointly and severally liable along with OPG for the award or not - time limitation of Enexio's claim for the outstanding principal amount - counterclaim in respect of the cost of repair/replacement of gearboxes and fan modules could be treated as barred by time or not - preservity of arbitral award for payment of the outstanding principal amount with interest - adoption of different yardstick for adjudging the counterclaim than what was adopted for adjudging the claim.
HELD THAT:- It is concluded as follows:
(i) Though the ACC Unit /project was of OPG, Gita Power, as the holding company of OPG, had actively participated in the formation of the contract for the project. Not only did it place purchase order(s) on Enexio but made advance payment(s) thereunder to Enexio, which were subsequently affirmed by OPG. The two, therefore, not only acted as a single economic entity but as agents of each other. Hence, the arbitral tribunal was justified in holding that Gita Power was bound by the arbitration agreement and jointly and severally liable along with OPG to pay the awarded amount.
(ii) The claim of Enexio was an indivisible claim for compensation in lieu of goods supplied, and work done, based on breach of the contract, therefore limitation for the claim was governed by Article 55, and not by Articles 14, 18 and 113, of the Schedule to the 1963 Act.
(iii) The claimant’s claim for the outstanding principal amount matured on 19 March 2016. Therefore, limitation started to run from that date. However, even if we count limitation from 21 September 2015 (as found by the Tribunal) it will have no material bearing on the award for the reason indicated below.
(iv) The limitation for the claim as well as counterclaim(s), other than those relating to cost of repair/replacement of gear boxes and fan modules, stood extended, under Section 18 of the 1963 Act, on the basis of acknowledgement made in the minutes of meeting dated 19 April 2018, and, therefore, those were within limitation as on the date of :
(a) commencement of arbitration (i.e. 2 May 2019); and (b) the date of filing counterclaim (i.e. 15 July 2019) and were rightly considered on merit.
(v) The counterclaims qua cost of repair /replacement of gear boxes and fan modules were rightly held barred by time as in respect thereof there was no recital in the minutes of meeting dated 19 April 2018.
(vi) Rejection of prayer to declare debit notes invalid, on ground of limitation, had no adverse impact on the claimant’s claim for compensation, which was well within the extended period of limitation.
Thus, there is no palpable error in the arbitral award as to be termed ‘patently illegal’ / ‘perverse’, or in conflict with public policy of India. Therefore, the Division Bench of the High Court was justified in setting aside the judgment and order of the Single Judge and restoring the arbitral award.
Appeal dismissed.
-
2024 (9) TMI 1299
Seeking appointment of a Sole Arbitrator to adjudicate the disputes between the Petitioners - Section 11(6) read with Section 11(9) of the Arbitration and Conciliation Act, 1996 - whether the SRG Group, being a non-signatory to the FAA, should also be referred to arbitration along with the AMP and JRS Groups? - HELD THAT:- The issues in the first category have to be mandatorily decided by the Chief Justice or his designate under Section 11 of the Act, 1996. This included the question whether there is an arbitration agreement and whether the party that has applied under Section 11 is also a party to such an agreement.
The crucial question that arose for consideration by this Court in Duro Felguera S.A. v. Gangavaram Port Limited [2017 (10) TMI 1304 - SUPREME COURT] was the effect of the change introduced by the 2015 Amendment to the Act, 1996 which inserted Section 11(6A). The Court held that all that needs to be looked into is whether the agreement contained a Clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement i.e., the existence of the arbitration agreement, nothing more, nothing less.
A two Judge-Bench of this Court in Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd. [2019 (4) TMI 716 - SUPREME COURT] considered the effect of Section 11(6A) which confined the jurisdiction of the Court to examine the “existence of an arbitration agreement” on an arbitration agreement contained in an unstamped document or contract. The Court was of the opinion that its enquiry as to whether a compulsorily stampable document, which contains the arbitration clause, is duly stamped or not, is only an enquiry into whether such an arbitration agreement exists in law and this does not in any manner amount to deciding “preliminary question(s)” that arise between the parties.
The recent Constitution Bench decision of this Court in Cox and Kings Limited v. SAP India Private Limited and Another [2023 (12) TMI 427 - SUPREME COURT (LB)], specifically dealt with the question of impleading a non-signatory as a party in the arbitration proceedings and the corresponding scope of enquiry at the referral stage. It was held therein that Section 16 is an inclusive provision which comprehends all preliminary issues touching upon the jurisdiction of the arbitral tribunal and the issue of determining parties to an arbitration agreement goes to the very root of the jurisdictional competence of the arbitral tribunal.
This Court took the view that the referral court is required to prima facie rule on the existence of the arbitration agreement and whether the non-signatory party is a veritable party to the arbitration agreement. However, recognising the complexity of such a determination, the arbitral tribunal was considered the proper forum since it can decide whether the non-signatory is a party to the arbitration agreement on the basis of factual evidence and application of legal doctrine.
The fact that a non-signatory did not put pen to paper may be an indicator of its intention to not assume any rights, responsibilities or obligations under the arbitration agreement. However, the courts and tribunals should not adopt a conservative approach to exclude all persons or entities who intended to be bound by the underlying contract containing the arbitration agreement through their conduct and their relationship with the signatory parties. The mutual intent of the parties, relationship of a non-signatory with a signatory, commonality of the subject matter, composite nature of the transactions and performance of the contract are all factors that signify the intention of the non-signatory to be bound by the arbitration agreement.
Considering the complexity involved in the determination of the question whether the SRG Group is a veritable party to the arbitration agreement or not, it would be appropriate for the arbitral tribunal to take a call on the question after taking into consideration the evidence that may be adduced by the parties before it and the application of the legal doctrine as elaborated in the decision in Cox and Kings [2023 (12) TMI 427 - SUPREME COURT (LB)].
Mr. Akil Kureshi (Former Chief Justice, High Court of Rajasthan) is appointed to act as the sole arbitrator. The fees of the arbitrator including other modalities shall be fixed in consultation with the parties - petition allowed.
-
2024 (9) TMI 1243
Payment of illegal gratification - Conspiracy - offences punishable under Section 120 B of the Indian Penal Code and Sections 7,12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 - HELD THAT:- A perusal of the charge sheet shows that the allegation is about payment of illegal gratification of Rs.58,000/-, Rs.3,50,000/- and Rs.1,50,000/- respectively, on behalf of the said company to officials of the customs department to procure benefits to its customers. As regards the allegation regarding the payment of Rs.58,000/-, the case is that accused no.1- Mehul Jhaveri paid the said amount to another accused, Chandubhai Kalal. The charge sheet contains no allegation against the respondent to connect him with the payment. The allegations of being part of a criminal conspiracy are made against the respondent. As regards payment of illegal gratification of Rs.3,50,000/- and Rs.1,50,000/- respectively paid to Anand Singh Mall, in the charge sheet, the allegation against the respondent is that the respondent in conspiracy with Mehul Jhaveri abetted the offence of bribery and arranged for payment of illegal gratification of Rs.3,50,000/- to Anand Singh Mall at Delhi through one Kishan Rajwar, who happens to be the respondent's nephew. Further allegation is that Mehul Jhaveri, in conspiracy with the respondent and one Dushyant Mulani, arranged to deliver illegal gratification of Rs.1,50,000/- to Anand Singh Mall in Mumbai.
The prosecution is not relying upon any telephonic conversation between the respondent and any of the coaccused or the person to whom illegal gratification was allegedly paid.
The High Court has examined the statements of the witnesses and documents which were a part of the charge sheet. The High Court has observed that in the diary entries made by accused no.1, the word “Dilipbhai” has been mentioned at the top. Against the entries of the amounts of Rs.3,50,000/- and Rs.1,50,000/-, the letters DM have been mentioned. However, no witness stated that the letters DM meant the respondent, not Dushyant Mulani. As pointed out earlier, in reply to the discharge application, the appellant admitted that letters DM refer to Dushyant Mulani and not the respondent.
Therefore, except for the bald allegation of participation in the alleged conspiracy without giving any details of the conspiracy, the respondent has been roped in the charge sheet. His name did not appear in the First Information Report. Taking the material forming part of the charge sheet as true, it cannot be said that a prima facie case of involvement of the respondent was made out. In the circumstances, we find no error in the view taken by the High Court when it discharged the respondent.
Appeal dismissed.
-
2024 (9) TMI 1242
Dishonour of Cheque - petitioner was not the Director of the Company when the loan was taken - vicarious liability of the petitioner - HELD THAT:- The criminal complaint has been filed under Section 138 read with Section 141 of the NI Act. The petitioner has been impleaded in the capacity of Director of the accused company. The present petition is accompanied by Form No. DIR-11 and DIR-12. The said documents i.e. DIR-11 and DIR-12 indicate that the petitioner was appointed as an Additional Independent Non-Executive Director on 26.02.2020 and that he resigned on 08.12.2021.
The issue whether requisite allegations are to be made against Directors and more particularly against the Directors who are Additional Independent Non-Executive, has come up before the Supreme Court in a catena of decisions. In POOJA RAVINDER DEVIDASANI VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (12) TMI 1070 - SUPREME COURT] the Supreme Court, while following the ratio of the decision in NATIONAL SMALL INDUSTRIES CORPN. LTD. VERSUS HARMEET SINGH PAINTAL [2010 (2) TMI 590 - SUPREME COURT] made the observations with regard to fastening vicarious liability on Directors who are not in charge of day-to-day affairs of the company.
Coming to the facts of the present case, a reading of the complaint would show that the same is bereft of any specific allegations as to how being an Additional Independent Non-Executive Director, the petitioner (arrayed as accused No.4 in the complaint) was incharge of day-to-day affairs and conduct of the business of the accused company. The complaint itself is accompanied by the Master Data of the company, which did not reflect the name of the petitioner as a Director. Even if the Annual Report for the Financial Year 2020-21 of respondent No. 3 is to be considered, it brings to the notice the fact that during all the Nine (9) Board Meetings held during the Financial Year 2020-21 and of the Annual General Meeting held on 31.12.2020, none of it were attended by the petitioner which goes to show that he was not involved in day-to-day affairs of the accused Company.
Thus, it is the conceded case of the complainant that the petitioner was not the Director on the relevant date. The case of the petitioner squarely falls in the ratio of the aforenoted binding precedents. In the totality of the facts and circumstances, the petitioner cannot be made responsible for the dishonour of cheques, and the continuation of the criminal complaint against him would be nothing but an abuse of the process of law.
The criminal complaint filed against the petitioner is quashed - Petition allowed.
-
2024 (9) TMI 1241
Dishonour of Cheque - liability of petitioner and legality of proceedings against him - HELD THAT:- Admittedly the petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question and therefore proceedings initiated under Section 138 of the Negotiable Instruments Act against the petitioners are nothing but sheer abuse of process of the Court and while passing the order of issuance of process against the petitioners, the learned Court concerned has committed an error, which warrants interference by this Court.
It is also pertinent to note that respondent No.2 and his wife have also filed one suit before the concerned Court against the present petitioners and others and in the said suit original accused Nos. 1 to 8 are not impleaded as party and no relief is sought against them. It is not in dispute that original accused No.6 is the authorized signatory of accused No.1 - partnership firm i.e. Shri Siddhivinayak Associates and accused nos. 2 to 8 are the partners of the said partnership firm.
If the allegations levelled against the petitioners in the complaints filed under Section 138 of the Negotiable Instruments Act are taken at its face value and accepted in their entirety, they do not constitute the offence alleged, insofar as the present petitioners are concerned. It is well settled that when the instrument is signed by the authorized signatory of a partnership firm, the prosecution under Section 138 of the Negotiable Instruments Act can be instituted against the persons, who were in-charge and responsible for the conduct of the business of the partnership firm at the relevant time when the offence was committed - without going into the further details of the matter, only on the ground that petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question, the present petitions are required to be allowed.
The proceedings pending in the Court of Additional Chief Judicial Magistrate, Ahmedabad (Rural) are quashed qua the petitioners - Petition allowed.
-
2024 (9) TMI 1240
Dishonour of Cheque - security cheques - seeking quashing of the Summoning Order - HELD THAT:- From the bare perusal of the Complaint under Section 138 of NI Act, 1881 and the submissions made by the petitioner in the present petition, it is evident that admittedly the aforementioned two cheques were given by the petitioner, which on presentation got dishonoured for insufficiency of funds.
It is the defence of the petitioner that the said two cheques were given as a security cheques which were to be encashed only if the pledged goods were not delivered. However, the pledged goods i.e., Sarso Seeds got stolen and the FIR bearing No. 710/2018 under Section 188 of the Indian Penal Code, 1860. It is further the defence of the petitioner that the ledger accounts on which the respondent No. 2-complainant has relied, are not correct.
It is quite evident from the submissions made that there is no denial to the issuance of the cheques and its subsequent dishonour on the ground of insufficiency of funds - All the contentions raised by way of present petition are, in fact, the defence of the petitioner which are required to be proved during the trial.
There is no infirmity in the impugned Summoning Order dated 29.11.2018 passed by the learned Metropolitan Magistrate - Petition dismissed.
-
2024 (9) TMI 1239
Dishonour of Cheque - Vicarious liability of non-executive director in a company - HELD THAT:- It is not disputed that the Petitioner herein is a Non-Executive Director of ATT. While dealing with the nature of averments that are required against a Non-Executive Director while filing a complaint under Section 138 NI Act, the Apex Court in POOJA RAVINDER DEVIDASANI VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (12) TMI 1070 - SUPREME COURT] has observed 'the law laid down by this Court is that for making a Director of a company liable for the offences committed by the company under Section 141 of the NI Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the company.'
The Coordinate Bench of this Court while dealing with the case of Ms. Poonam Singh, who is accused No. 4 in the complaint filed by the Respondent, has not seen as to whether Ms. Poonam Singh is a Non-Executive Director or a regular Director. There is no discussion in the judgment of the Coordinate Bench regarding this aspect - In the present case it was specifically pleaded that the Petitioner is a non-executive Director and is not responsible for the day-to-day affairs of the company. Form DIR-12, which has been placed and the veracity of which has not been denied, shows that the Petitioner is a non-executive director. In the entire complaint there is no averment as to whether the Petitioner herein was involved in the loan transaction or not and as to whether the Complainant has dealt with the Petitioner at any point of time or not.
This Court is of the opinion that the case of the Petitioner herein is distinguishable from that of Ms. Poonam Singh inasmuch as the Petitioner herein is a Non-Executive Director and without any specific averment against the Petitioner herein in the complaint filed by the Respondent herein as to whether the Petitioner herein is involved in the loan transaction or not and as to whether the Complainant has dealt with the Petitioner at any point of time or not, the complaint against the Petitioner herein cannot be permitted to continue.
Petition disposed off.
-
2024 (9) TMI 1238
Dishonour of Cheque - acquittal of the sole respondent - discharge of burden under Section 139 of the Negotiable Instruments Act - HELD THAT:- Evidently, in the case on hand, the prosecution discharged its burden to prove the requirement of Section 138 of the Negotiable Instruments Act. The sole respondent admitted that his signed cheques were misused. However, no evidence was led to prove this fact, therefore, presumption would be there in favour of the complainant that the cheque was issued by the accused for payment of the existing dues.
The trial court has wrongly relied on some of the lapses on the part of the complainant to disbelieve that the complainant proved the cheque under Section 138 of the Negotiable Instruments Act and wrongly held that the accused has already discharged its burden under Section 139 of the Negotiable Instruments Act only for certain lapses of the complainant. This case is squarely covered by the dictum in RAJESH JAIN VERSUS AJAY SINGH [2023 (10) TMI 418 - SUPREME COURT]. Hence, judgment relied upon by the learned counsel for the respondent is not applicable in the facts and circumstances of this case.
The judgment of acquittal dated 24.8.2022 passed in Criminal Case No. 258/2016 by learned Special Metropolitan Magistrate, NI Act, Jodhpur stands hereby set aside and the sole respondent is convicted for the offence under Section 138 of the Negotiable Instruments Act - Considering the mitigating and aggravating circumstances appearing in this case as well as the fact that no previous conviction is there against the sole respondent, 2 months simple imprisonment is awarded alongwith fine of the cheque amount plus 30% of the same as compensation to be payable within a month, failing which, the said amount would be recoverable according to law prescribed for recovery of fine.
Criminal appeal allowed.
-
2024 (9) TMI 1017
Dishonour of Cheque - funds insufficient - legally recoverable debt or not due to limitation - acquittal of the accused/respondent - HELD THAT:- The Supreme Court in A.V. Murthy v B.S. Nagabasavanna [2002 (2) TMI 1214 - SUPREME COURT] recognized the application of Section 25 (3) of the ICA while disallowing a dismissal of a complaint under section 138 of NI Act, at the behest of a complainant, where a cheque had been given for a liability which was time-barred, it was held that 'Even under Section 139 of the Act, it is specifically stated that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. It is also pertinent to note that under sub-section (3) of Section 25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract.'
The Supreme Court in S. Natarajan v Sama Dharman & Anr. [2014 (7) TMI 1330 - SUPREME COURT] expressed the opinion that, the High Court had erred in quashing the complaint under section 138 NI Act, on the ground that debt or liability was barred by limitation since that question can be decided only after evidence has been adduced being a mixed question of law and fact.
In assessing limitation, the Trial Court determines the date of loan as approximately 30th April 2012 (para 40 of the impugned order), taking the period of limitation to April 2015. Cheque in question was issued on 31st December 2015 and therefore, the Trial Court held in favour of the accused, that they were able to rebut the statutory presumption that there was no legally enforceable debt.
Considering that the Trial Court has considered the evidence, the principles in S. Natarajan & Yogesh Jain may not be fully applicable at this stage. The matter is now in appeal against the acquittal and the Court has perused the evidence on record. Based on the analysis above and that the Trial Court itself found it unbelievable that a cheque of Rs. 3,50,000/- would be given in 2015, despite the accused having asserted in the trial that he had repaid the debt of the father, the only question remains is on the legal enforceability of the debt.
The furnishing of a cheque of a time-barred debt effectively resurrects the debt itself by a fresh agreement through the deeming provision under section 25 (3) of ICA. The original debt therefore, through section 25 (3) of the ICA, becomes legally enforceable to the extent of the amount the cheque has been given - Drawing of the cheque in itself, is acknowledgment of a debt or liability. It is the resurrection or the revival of the prior debt which would trigger the provisions under section 138 of NI Act. To deny a complainant/drawee of invoking the penal provisions under section 138 of NI Act, despite the categorical premise of section 25 (3) of the ICA recognizing a fresh agreement to pay, would be an unfortunate disentitlement.
Impugned order dated 31st July 2017, acquitting the respondent no. 2, is set aside - List on 7th October 2024 for further directions. Respondent no. 2 be present on the next date scheduled.
-
2024 (9) TMI 1016
Seeking grant of anticipatory bail - offence u/s 420, 477-A, 467 and 409 read with 34 of the Indian Penal Code, and Section 3 of the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 - allegation of receiving embezzled sum of money - HELD THAT:- It is not in dispute that the investigation is almost complete, and the documents related to the crime consist of bank records. Additionally, there is no dispute that the applicant was involved in the trade of medical equipment and oxygen concentrators. Notably, one of the co-accused has already been granted bail by this Court. The applicant is ready to deposit Rs.22,00,000/- in the trial Court to show his bona fides. Prima facie, there is material to suggest that the applicant received the money through legitimate business transactions, as tax invoices were issued, and GST payments were made to the GST department. Furthermore, the transactions were conducted exclusively through the Bank.
This Court is inclined to allow the present application - In the event of the applicant's arrest in CR No.811 of 2021, registered at Akluj Police Station, Solapur and investigated by EOW, Solapur, he shall be released on bail upon furnishing a PR Bond of Rs.25,000/- with one or two solvent sureties in the like amount, subject to the condition that the applicant shall deposit an amount of Rs.22,00,000/- in the trial Court within two weeks from today. The trial Court, however, shall not allow the withdrawal of this amount until the conclusion of the trial - Application allowed.
-
2024 (9) TMI 1015
Seeking a direction for numbering and taking on file of the petition filed by the petitioners/defendants for setting aside the exparte order, under Order IX Rule 7 of CPC, pending on the file the Principle District Court (Commercial Court) at Chengalpattu - HELD THAT:- In view of Section 13 of the Commercial Courts Act, the appeal will lie only for the orders passed by the Commercial Court Act, that has been specifically enumerated under Order 43 of CPC. But, in the Order 43 of CPC, there is no provision for appeal, to set aside the exparte order under Order IX Rule 7 CPC. In such circumstances, since the Commercial Courts Act, does not preclude the applicability of Order IX Rule 7 of CPC in the commercial suit, the impugned order of return, passed by learned Principal District Judge, Chengalpattu, dated 18.12.2023 is liable to be set aside.
The impugned returned order, dated 18.12.2023 is set aside. The learned Principal District Judge, Chengalpattu is directed to take on file the petition filed by the petitioners under Order IX Rule 7 and dispose of the same on merits.
This civil revision petition is allowed.
-
2024 (9) TMI 917
Dishonour of Cheque - mandatory enquiry in respect of accused person - Rejection of prayer of the petitioner for conducting an enquiry under Section 202 of the CrPC and fixing a date for cross-examination of P.W. 1.
Whether the amendment of Section 202 of the Code of Criminal Procedure, 1973 as enacted vide Section 19 of the Criminal Procedure (Amendment) Act, 2005 is mandatory in nature while conducting an enquiry under Section 202 of the CrPC before issuing process under Section 204 of the CrPC to an accused, who resides beyond the territorial jurisdiction of the Court of the Trial Magistrate? - Whether Section 202 of the CrPC is applicable in a case of the Court complaint filed under Sections 138 read with Section 142 of the NI Act, 1881 even supported by an affidavit by the Public Servant?
HELD THAT:- It is admitted facts that the petitioner resides beyond the territorial jurisdiction of the Court concerned. There is no dispute with regard to the address. Accordingly, it would be necessary to assert whether the Learned Trial Magistrate should follow the provisions of sub-section (1) of Section 202 of the CrPC and for that this Court relied a judgment placed by the opposite parties passed in S. S. Binu v. State of West Bengal and another [2018 (5) TMI 2157 - CALCUTTA HIGH COURT] where the Division Bench observed 'keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202, Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an enquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer.
This Court finds that the Learned Chief Metropolitan Magistrate has carefully perused the complaint supported by an affidavit and documents, taken cognizance and further transferred the case to Learned Metropolitan Magistrate, 16th Court for enquiry and disposal under Section 192 (1) CrPC - And finally satisfied that there are sufficient grounds for proceeding against the accused person under Section 138 read with Section 142 of the N.I. Act, 1881 and issued summon to the accused person. Moreover, accused person appeared through his learned Advocates. On 12.09.2019, a plea under Section 251 of the Code of Criminal Procedure was taken and the matter was fixed for evidence. The complainant was examined on 04.12.2019 and 20.01.2021 and the matter was fixed for cross-examination. Thereafter, at the stage of cross-examination, the accused person filed petition after more than a year on 05.04.2022 for examination under Section 202 of the CrPC.
Revision dismissed.
-
2024 (9) TMI 916
Seeking forbearance on respondents 1 to 5 from permitting installation of huge amusement rides by the respondents 11 and 12 or any other persons by damaging the river bed of Vaigai River at Paramakudi by installing huge amusement rides of 48 in number - HELD THAT:- On perusing the reason that has been given by the Public Works Department in the rejection order dated 26.02.2024, it is appealing, because even for drinking water purpose, if water is released from Vaigai dam to Ramanathapuram District, there is a likelihood of flood of water in the Vaigai River. Therefore, if in the River, these kind of amusement activities are taken place by erecting these amusement equipments of nearly about 50 or more, as another person seems to have obtained similar order today from the Writ Court in danger, where it may be for drinking water purpose or even there may be a flash flood due to heavy rain, suddenly if it is taken place, which will be endanger to the public, who participate in the festival by using these amusement equipments.
Since the festival is going to be commenced by 20.04.2024, immediate action shall be taken by the respondents, for which, full co-operation shall be given by the private respondents, who want to establish such amusements rides. The afore said arrangement shall be made, as early as possible, preferably, before 22.04.2024.
Petition disposed off.
-
2024 (9) TMI 915
Seeking rescheduling of the CA Intermediate and Final Examinations to the second week of June, 2024 - Ubi jus ibi remedium - HELD THAT:- Ubi jus, goes the adage, ibi remedium. A remedy can only follow a right. The hope that the law can be a panacea for every difficulty faced by every citizen in this country, though a cherished ideal, must remain, at the end of the day, Utopian.
The mere fact that certain individual candidates may face a hardship in undertaking it cannot constitute the basis for this Court to derail the entire CA Intermediate, or Final, examination, which presently is to be undertaken by as many as 4,36,246 candidates. Indeed, this Court is surprised that such a request has even been made.
The respondent has taken care to ensure that no examination is held either on the date of elections or on the date immediately prior thereto. The elections are to be held on 7th and 13th May 2024 and there is no examination scheduled for 6th, 7th, 12th or 13th of May 2024. None of the other dates, for which the examinations are scheduled, conflict in any way, or are even proximate, to the dates on which the elections are to be held.
The respondent has, therefore, been proactive and ensured that the right of the candidates, who are to undertake the examinations, to cast their votes, is not affected by conducting of the examinations. The scheduling of the examination has been so done as to ensure that an individual candidate is able, should she so desire, to cast her vote and undertake the examination. No more can be expected of the respondent. It is for the individual candidates now to work out their schedules, and adjust their itineraries accordingly.
The petitioners are less than fair to the security administration in place, in their rather bleak prediction that there is likely to be chaos, commotion and violence during elections. General elections are periodically held, and the Court has, given past experience, no reason what so ever to doubt the capacity, or the capability, of the security machinery in place, to ensure that the elections take place in a free and fair atmosphere.
The comparison between candidates who are undertaking the examination this year and those who undertook the examination in other years when there were no elections, is completely alien to Article 14. They are neither identically, nor even similarly, situated. Article 14 forbids discrimination amongst equals, not unequals. No plea of discrimination can be based on a comparison between candidates undertaking examinations during election year and others. Else, there would have to be an absolute proscription on holding of examinations during election year altogether.
The plea of violation of Article 21 is based on the prediction, of the petitioners, that the entire nation is bound to be in a state of turmoil during elections. There is no basis for this presumption.
It is clear on the face of it that this petition is completely bereft of substance. The petition is accordingly dismissed.
............
|
9911796707
