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Showing 241 to 260 of 1320 Records
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2020 (9) TMI 1081
Approval of the Resolution Plan - Section 31 of the Code read with regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- There appears to be no discrimination in the resolution plan in respective class of creditors, as same treatment is provided to similarly situated each class of creditors. So long as the provisions of the Code and the Regulations have been met, it is the commercial wisdom of the requisite majority of the Committee of Creditors which is to negotiate and accept a resolution plan, which may involve differential payment to different classes of creditors - As a sequel to the aforesaid discussion it is seen that clause (b) of sub-section (2) of Section 30 of the Code stands satisfied.
All the requirements of Section 30(2) are fulfilled and no provision of the law for the time being in force appears to have been contravened - In respect of provisions of Regulation 39 (4) a copy of performance security as deposited by resolution applicant has been placed on record. It seen that Bank Guarantee of ₹ 2 Crores issued by DCB Bank cover from 29.02.2020 to 28.11.2020 has been submitted by resolution applicant - Resolution Professional has confirmed compliance of Section 38(2) and (3) in the compliance filed alongwith the application.
Resolution plan is approved - application allowed.
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2020 (9) TMI 1080
Issuing directions to the respondent/IRP, to refrain from creating "undue pressure" upon him and "harassing" him, given his age, by threats and or other means, and compel him to support the respondent during the currency of this pandemic on the pretext of CIRP timelines etc. - HELD THAT:- The applicant/CMD and all other directors and personnel were legally bound to extend all types of assistance and cooperation to the RP in the performance of his statutory duties assigned to him by the Code, and any hindrance or obstruction caused or intended to be caused by the CMD/directors and other personnel shall subject them to legal consequences. None of the contentions raised and the allegations levelled by the applicant has been able to convince us. The applicant being 62 years, if unable to himself do, could have directed some other director or personnel to provide access to the office premises so that the RP could have taken possession of the relevant record. He was also legally duty-bound to provide all the detailed information and records, including the sale deeds relating to Jaipur property and documents relating to lease and shareholding of the Australian Company. The lockdown had started about two months after the order of CIRP had been passed by this Adjudicating Authority.
If a director or a personnel of the Corporate Debtor does not cooperate or creates hindrance or disobeys the instructions of the RP, the law is not toothless and can deal with him/them in a stringent manner. The applicant has acted in a most unruly manner, when, instead of cooperating with the instructions of the RP, he has chosen to level false and frivolous allegations against the RP, and attributing motives and using the unacceptable language, like "HARASSMENT" AND "UNDUE PRESSURE", without realizing that the RP is issuing instructions in performance of his statutory duties. The applicant should have realized that he was duty-bound to provide all the assistance and cooperation to the RP in taking IMMEDIATE custody of all the assets and records, and his failure or reluctance in doing so may land all the directors of the company in trouble.
Application dismissed.
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2020 (9) TMI 1079
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - novation of Contract or not - pending civil suit for recoveries of the amount dues before the Hon'ble Bombay High Court - HELD THAT:- While admitting the petition under Section 7, the only aspect relevant is that there is a debt and default and in the instant case, we find an express provision and obligation of repayment under the Debenture Trust Deed and further that the Corporate Debtor defaulted in paying monies under the Debenture trust deed and also under the Pari Passu agreement executed by the parties to facilitate and secure payment of monies due to the Petitioner. The primary agreement of loan namely the Debenture Trust Deed executed by parties under which the Debentures were issued to the Debenture Holders was sought to be confirmed by execution of Pari Passu Agreement and therefore it can be said that two distinct Agreement ensures to the benefit of petitioner's right of receiving payments and non-payment of monies by the Corporate Debtor or PNB demonstrates a clear liability and default, thus an action to initiate CIRP can be triggered.
The nature of Debt is a "Financial Debt" as defined under section 5(8) of the Code. It has also been established that there is a "Default" as defined under section 3(12) of the Code on the part of the Debtor. The two essential requirements, i.e. existence of 'debt' and 'default', for admission of a petition under section 7 of the I&B Code, have been met in this case.
Petition admitted.
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2020 (9) TMI 1078
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Section 9 of the IBC Code 2016 says that after the expiry of period of 10 days from the date of delivery of the notice or invoice demanding payment under Section 8(1) IBC. if the Operational Creditor does not receive the payment from the Corporate Debtor or notice of the dispute has not been raised by the Corporate Debtor then the Operational Creditor may file an application before the Adjudicating Authority.
Corporate Debtor has not raised the dispute or notice of dispute as required under Section 8(2) of the IBC within 10 days from the date of receipt of demand notice hence, of course, after filing the reply to the demand notice he has raised dispute that Operational Creditor has charged abnormal, unjust and exorbitantly high price from the Corporate Debtor for the service and in support of that they have enclosed the What's app communication being made between tone VM and Hindustan Naresh Yadav since, notice of dispute has not been raised within the period prescribed under Section 8(2) of the IBC, therefore, in our considered view that cannot be taken into consideration when the Corporate Debtor in response to summons appear and filed the reply.
The Corporate Debtor has not denied this fact that service has been rendered by the Operational Creditor the only grievance of the Corporate Debtor is that Operational Creditor has charged abnormal, unjust and exorbitantly high price from the Corporate Debtor, we have already held that Corporate Debtor has not raised the dispute by filing reply within 10 days as prescribed under Section 8(2) of the IBC, rather filed the reply after 10 days of the delivery of demand notice. Moreover, we held that What's app communication is in between Hindustan Media Ventures Ltd. and Corporate Debtor and not with the Operational Creditor and except that there is no other document to show that record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute.
In view of Section 9(5)(i)IBC, the Adjudicating Authority has to see that the application is complete and there is no payment of the unpaid operational debt. the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor and no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility: and if these are established by the Operational Creditor then Adjudicating Authority has no option but to admit the application - in the case in hand it has been established by the Operational Creditor that there is no payment of unpaid operational debt, the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor and no notice of dispute has been received by the operational creditor within 10 days from the receipt of demand notice or record of dispute in the information utility.
Application admitted - moratorium declared.
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2020 (9) TMI 1077
Liquidation of Corporate Debtor - Section 33(1), 33(2) & 34(1) of the Insolvency & Bankruptcy Code - HELD THAT:- It is noted that the Corporate Debtor was admitted in to Corporate Insolvency Resolution Process - It is found that, no Resolution Plan has been received during Corporate Insolvency Resolution Process nor EOI's have been received. In these circumstances, there remains no other option but to pass an order of Liquidation of the Corporate Debtor and this has also been decided by the Committee of Creditors in its meeting dated 26.09.2019 with 100% voting. Considering the factual situation of the matter and applicable legal provision(s), to be ordered that company to be liquidated. This to be further ordered that the Resolution Professional shall act as 'Liquidator'.
Application allowed.
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2020 (9) TMI 1076
Directions upon the promoters, directors of the corporate debtor to hand over the management of the affairs of the company for smooth running and completion of the CIRP - HELD THAT:- It is certain that the directors of the CD not giving maximum assistance to see that their company is to be resolved with in the timeline. It is submitted by the RP that CD is an MSME, and nothing prevent them in submitting any viable resolution plans and that no such plan also forthcoming from them. As per section 19 of the Code the directors of the CD and any other person associated with the management of the CD shall extend all assistance and cooperation to the IRP as may be required by him in managing the affairs of the CD. Being satisfied that the directors and their associates are not inclined to extend cooperation to the IRP this is a fit case wherein directions as prayed for is to be issued.
The directors of the suspended board of the CD is directed to cooperate with the IRP and to provide all assistance to him to complete the CIRP In time - auditors are hereby directed to complete the transaction audit immediately, preferably within two weeks from the date of receipt of this order by way of email. RP is directed to serve a copy to the auditors on receipt of the order by him.
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2020 (9) TMI 1075
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- Reading Section 9 with Section 5(20) and 5(21) of the Code, application under Section 9 of the Code can be filed by a person who has a claim in respect of the provision of goods and services. The application is based on the operational creditor neither receiving payment from the corporate debtor nor notice of dispute under Section 8(2) of the Code. There is no provision in Section 9 of the Code read with Section 5(20) and Section 5(21) of the Code for an application being moved to the Tribunal on the basis of a decree. The decree may be evidence of non-payment or of default but by itself, a decree cannot give rise to and form the basis of an application under Section 9 of the Code. Section 3(10) of the Code gives the definition of creditor but it is only an operational creditor who has the right to file an application for initiating CIRP in the case of the corporate debtor. The submissions made by ISMT Limited cannot therefore, be accepted.
Time Limitation - HELD THAT:- The payment by HIM Teknoforge Limited was made conditionally and was subject to acceptance of the outstanding amount payable being only ₹ 7,31,813/-. This condition was not accepted by ISMT Limited which filed an application under Section 9 of the Code for the amount of ₹ 83,12,760.91 with interest. The conditional payment cannot therefore, have the effect of being an acknowledgment of the debt claimed of ₹ 83,12,760.91. Moreover, even if it is presumed to be an acknowledgment of debt, it is beyond the period of three years from the date on which the debt became due and therefore, a fresh period of limitation is not available - plea of the learned senior counsel for HIM Teknoforge Limited that the present petition is not filed within the limitation period is accepted.
The application under Section 9 of the Code is therefore, rejected on the ground that it is barred by limitation and alternatively, on the ground that notice of dispute was received by the operational creditor - Application disposed off.
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2020 (9) TMI 1074
Maintainability of application - initiation of CIRP - core issue is the alleged default of the Corporate Debtor in not finally granting the "Performance Shares" to the Petitioner - HELD THAT:- The conditions as laid out in the Rules for the final grant and conveyance of such shares would indicate whether any right or claim arose in the hands of the Petitioner/Operational Creditor with regard to such Performance Shares. The "Rules of the Performance Share Plan", a copy of which has been placed on record, shows that Essilor International had adopted the Rules regarding Performance Shares on 02.12.2015, as authorised by the EGM held on 05.05.2015, for the benefit of its Non-French employees and executive officers, in which they could participate, being a part of the Group. However, any grant of the same was at the discretion of Essilor Luxxotica, as the Company is presently called, and these are applicable to the entire Group, including employees of Essilor India. Broadly speaking, Performance Shares are granted free of cost, and are in the nature of incentives to retain employees, in lieu of their loyalty and to strengthen the Company brand, by linking them to future payment, subject to various conditions. Their legal framework is governed by the provisions of the French Commercial Code relating to free share grants. Some of the important clauses of the Performance Plan, for our purpose, and for our summary examination, are Clauses III, IV and V.
Clause III deals with the "Vesting Period". The process starts with a meeting of the Board of Directors for making a conditional grant of Performance Shares to certain employees. This is the "Grant Date". This also defines the Initial Reference Price and the Average Price, which are required for assessing the Performance Condition subsequently. This clause also stipulates the conditions under which shares are delivered to the allotee on the "Final Delivery Date". Prior to this final delivery date there is a "vesting period" starting with the Grant Date and ending with the Final as a Delivery Date, which may be the 4th anniversary of the Grant Date or the Performance Achievement of the Date; or the sixth anniversary of the Grant Date, which ever happens first. Hence, until the vesting period ends as above, it is apparent that there is no right to or ownership conferred upon the Employee vis a vis the Performance Shares.
Coming to the facts of the Petitioner's case, it is seen that Performance Shares were awarded to the Petitioner on 02.12.2015, 22.09.2016 and 03.10.2017. As per Clause III of the Rules, the Vesting Period in the case of the Petitioner would have ended on, and he would have become eligible for finally earning the Performance Shares in four years, i.e. in the years 2019, 2020 and 2021 respectively. The conditions required to be fulfilled were two, namely the Presence Condition of the employee and the Performance condition of the shares. But he was admittedly not an employee in the Respondent/Corporate Debtor Company in 2019, having finally left the Company on 31.12.2018 after availing Garden Leave subsequent to acceptance of his resignation on 21.09.2018. Thus, as per Clause IV the Petitioner beneficiary had seized to hold any employee or corporate officer position whatsoever within the Essilor Group, to whom these Rules applied, and hence he had forfeited his right to the final earning of the Performance Shares or to any indemnity therefor - Such date of forfeiture of the right to a definitive grant of the Performance Shares was the date of the definitive cessation of all employee or corporate officer functions, i.e. 31.12.2018 in the case of the Petitioner.
It becomes clear on the face of the available facts and the Rules governing Performance Shares, as mentioned above, that the Presence Condition referred to in Clause IV was not met and the Petitioner was ineligible for the same - the Petitioner cannot take the plea that he had retired in the normal course at the age of 58 years and was eligible for the Performance Shares by virtue of the Exception to Clause IV, being unaware of the extension letter. It is also seen from the Notice dated 27.07.2016 that it was circulated to all Regional and Branch Offices, all Notice Boards and All Employees. No material has been brought on record by the Petitioner to establish that the said Notice was fake, non-existent, an afterthought or issued only in his case to deny him the benefits claimed.
The Petitioner was not eligible for the Performance Shares, going by the plain facts of the case, and hence there was no debt or default on the part of the Respondent/Corporate Debtor. However, while the summary proceedings under the Code lead us to this conclusion, and there are disputes raised by the Petitioner that cannot be investigated here, we may add that this order will not take away the rights of the Petitioner to pursue the same under any other law or forum, if permissible - Petition dismissed.
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2020 (9) TMI 1073
Direction for change of IRP in respect of M/s. Inter Labs (India) Private Limited / Corporate Debtor - exclusion of time from 22.08.2017 till date of appointment of IRP from the CIRP period - HELD THAT:- The Adjudicating Authority can exclude a certain period for the purpose of counting total period of CIRP, if circumstances justify such exclusion.
Here is the case, where considerable time of more than two years have been lost due to reasons stated aforesaid. We are of the considered view that since admission order has been restored to the file of this Tribunal by the Hon'ble Supreme Court, the CIRP to start afresh from today.
The Corporate Insolvency Resolution Process to start afresh from today i.e. 25.02.2020. That the public announcement of the initiation of Corporate Insolvency Resolution Process shall be made immediately as prescribed under section 13 of Insolvency and Bankruptcy Code, 2016 - Application allowed.
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2020 (9) TMI 1072
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- For an application filed U/s 7 of the Code, the parameters/requisite conditions to be considered by the Adjudicating Authority is whether the default is committed for the debt or not, and whether the Application is filed in accordance with law by suggesting suitable IRP or not.
There is no dispute with regard to sanction of loans in question by the Bank. Moreover, it is not the case of Respondent that the Loans in question were not sanctioned and has committed its defaults. Payment of some part of instalments of loan, not accepting its proposal of settlement by the Bank etc. are not tenable grounds in a Petition filed U/s 7 of Code. And requesting the Bank for settlement of claim in question itself show that the Debt in question is established and default of Account of Respondent is not in dispute - Petition admitted - moratorium declared.
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2020 (9) TMI 1071
Additional time period of 75 days sought for completion of the CIRP - permission to CoC members, who abstained from voting to submit their vote on approval of the resolution plan or liquidation of the corporate debtor - HELD THAT:- The Code has provided certain timelines for completion of the CIRP with a specific object and purpose. The Hon'ble Apex Court in the matter of COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] held that 330 days is not mandatory and in exceptional cases, and where the circumstances warrant, the same can be extended for a further reasonable period. But in the instant case, one of the CoC member, i.e. SBI when this Adjudicating Authority specifically provided opportunity to consider the resolution plan of Maritime Trade Corporation by extending time and by issuing certain specific directions, having failed to act and having allowed to lapse the maximum period provided under the Code, now through the resolution professional seeking extension of further time and also for issuance of further directions for convening of the meeting of the CoC for consideration of the resolution for approval of the resolution plan of the Maritime Trade Corporation.
Let the resolution professional take out the notice to State Bank of India and serve the same and file affidavit of service accordingly. State Bank of India shall file an affidavit explaining the day-to-day delay from 15.11.2019 on which date, the last CoC meeting was held under the orders of this Adjudicating Authority, to till date and also to explain why exemplary costs are not imposed on it for its aforesaid conduct.
List the instant CA on 06.03.2020.
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2020 (9) TMI 1070
CIRP Process - validity of the order of the Presiding Officer under the Payment of Wages Act, 1936 - Scope of Section 238 of the IBC, 2016 - moratorium was declared u/s 14 - violation of provisions of Section 14 as well as Section 238 of IBC, 2016 - HELD THAT:- The Hon'ble Supreme Court has clearly held in the case of Alchemist Asset Reconstruction Company Ltd. Vs. M/s. Hotel Gaudavan Pvt. Ltd. [2017 (12) TMI 1107 - SUPREME COURT] held that the steps that have to be taken under the Insolvency Code will continue unimpeded by any order of any other Court - The ratio decidendi of the Hon'ble Supreme Court is binding on all subordinate authorities of the State vide Articles 141 & 144 of the Constitution of India.
The order passed by the Presiding Officer under the Payment of Wages Act, 1936, is still-born and a nullity in law and cannot stand in view of the foregoing narrative and the provisions of law as enunciated in this order and consequently stands invalidated - A copy of this order may be served on the Presiding Officer so as to take note of this Tribunal's order and to refrain from acting against the interest of justice.
Application allowed.
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2020 (9) TMI 1069
Rejection of SVLDR scheme - Section 125 (1) (e) of the Finance Act, 2019 - contention of the respondents is that the petitioner has filed the declarations after being subjected to an enquiry/ investigation/audit and hence he is not eligible to make declarations and avail the benefits of the Scheme - HELD THAT:- The SVLDR Scheme has been introduced by the Government of India as an endeavour to unload the baggage relating to the legacy taxes that have been subsumed under GST and allow business to make a new beginning and focus on GST. Dispute Resolution and Amnesty are the two components of the SVLDR Scheme. The Dispute Resolution component is aimed at liquidating the legacy cases locked up in litigation at various forums, whereas the Amnesty component gives an opportunity to those who have failed to correctly discharge their tax liability to pay the tax dues. The Scheme is incorporated in chapter V of the Finance Act, 2019.
Paragraph 10(b) of Ext.P19 circular dated 27.08.2019 issued by the Government of India, Central Board of Taxes and Customs, would show that the Scheme is not available to an applicant who has been issued a show cause notice relating to refund or erroneous refund. It has potential to lead to an interpretation that such persons will not be able to opt for the Scheme for any other dispute as well, since the restriction is on “the person” in place of “the case” - As per the Scheme, as clarified in Ext.P19 circular, if a person has been issued a show cause notice and at the same time he also has other outstanding disputes which are covered under the Scheme, then he will be eligible to file declaration for other cases. Therefore, it is clear that any investigation pertaining to the period from 2014 to 2016 by the authorities should not affect the declarations made by the petitioner in respect of the period from April, 2016 onwards. The contention of the respondents is that the investigation pertains to the period 2016–17 also and the respondents are yet to quantify and communicate the amount due.
The respondents are directed to consider Exts. P15 to P17 declarations made by the petitioner under the SVLDR scheme 2019. Ext.P18 letter dated 16.12. 2019 of the Joint Commissioner is set aside. The respondents are directed to place the afore declarations made by the petitioner before the Designated Committee. The Designated Committee is directed to decide the petitioner’s applications/declarations after giving an opportunity of hearing to the petitioner - Petition disposed off.
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2020 (9) TMI 1068
Input Tax Credit - validity of default notices of assessment of tax, interest and penalty - Section 9(2)(g) of the Delhi Value Added Tax Act, 2004 - HELD THAT:- The impugned order dated 25th June, 2020 passed by the OHA is set aside and the matter is remanded back to the OHA. The OHA is directed to decide the matter within twelve weeks. All the rights and contentions of the parties are left open.
Petition disposed off.
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2020 (9) TMI 1067
Reduction in the sentence awarded - Smuggling - truck was carrying illicit drugs - offences punishable under Sections 21(c) and 25 of the NDPS Act - HELD THAT:- This Court is of the view that there are certain mitigating circumstances which are required to be considered. The petitioner was the only male member of his family, which comprises of his widowed mother, his wife a daughter. It is also relevant to note that the appellant is not involved in any other case and has no criminal antecedents - It is also material to note that in BALWINDER SINGH VERSUS ASSTT. COMMISSIONER, CUSTOMS & CENTRAL EXCISE [2005 (2) TMI 127 - SUPREME COURT], 175 Kgs of Heroin and 39 Kgs of Opium of foreign origin was recovered from the petitioner. However, the Court noted that the petitioner “was convicted of this offence for the first time” and considering the facts and circumstances reduced the sentence awarded.
The appellant has been in custody since 04.02.2010 and has served more than ten years and six months of his prison sentence. His conduct in jail is also reportedly satisfactory. Considering the above, the sentence awarded to the appellant is reduced from twelve years rigorous imprisonment to the sentence already served. The appellant shall pay the fine of ₹1,00,000/- as imposed and in default of which shall serve simple imprisonment for a further period of three months instead of one year as directed by the impugned order dated 29.03.2016.
Appeal allowed in part.
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2020 (9) TMI 1066
Dishonor of Cheque - On behalf of respondent no. 2, it is argued that the petitioner does not deserve judicial discretion in her favour because despite Court's order in all the three cases, she did neither pay the amount of fine, nor did she pay compensation to the respondent no. 2, who is an old person of 65 years of age - HELD THAT:- Sentencing is an area which troubles the Court more than the trial itself. The balance is always made between the conflicting interests. It is this area in which there is large discretion given to the Judges. The purpose of sentencing need not be reiterated. The person who has incurred loss due to offence is also required to be compensated and it is perhaps because of this reason, that in all the three cases, the petitioner was required to pay compensation to respondent no. 2, but, she did not pay even a part of it. This is not a small amount. In some cases, the amount of compensation is 6,70,000/-.
This Court is of the view that since the petitioner has not paid even a part of the compensation, as directed by the Court, she does not deserve any judicial discretion for permitting the sentences imposed upon her to run concurrently and accordingly, this Court is of the view that the learned Court below on different premises, but, rightly rejected the application filed under Section 427 of the Code - Petition dismissed.
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2020 (9) TMI 1065
Maintainability of petition - Rejection of application for summoning the employee of the respondent-bank - denial of fair trial - Section 311 of the CrPC. - HELD THAT:- In the present case, it is apparent from the record that the petitioner had not established that for which purpose he wanted to summon the employee of the respondent-Bank. It had also not been stated by the petitioner that which bank document he wanted to summon. The petitioner had also not established the essentiality of the respondent-bank employee and document to be summoned to prove his defence. Therefore, the trial Court has rightly rejected the application of the applicant lacking the reasonable cause for calling the witness as well as documents.
Petition dismissed.
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2020 (9) TMI 1064
Dishonor of Cheque - validity of summoning order - HELD THAT:- The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
The submissions made by the applicant's counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial.
As requested by the counsel, it is directed that the accused may appear before the court below within a period of one month from today through the representing counsel and move an application seeking compounding of offence through compromise. On such application being moved the concerned court may take adequate steps in accordance with law in this regard and shall provide further opportunity to the accused which shall not exceed a maximum period of four months from today to make an endeavour in this direction -
In the aforesaid period of five months or till the decision given in the light of the application, whichever is earlier, no coercive measures shall be adopted against the accused.
Application disposed off.
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2020 (9) TMI 1063
Condonation of delay in filing appeal - Dishonor of Cheque - time limitation prescribed under Section 142 of the N.I. Act - power of Magistrate to condone the delay - HELD THAT:- As is well-known Section 138 of the N.I. Act lays down that timelines for issuing notice of repayment and if no such repayment is made for filing complaint before the Magistrate when a cheque upon its presentation has been dishonoured - What emerges from the said provision is that the Magistrate would not take cognizance of a complaint which is not made within one month of the date on which the cause of action in terms of Clause (c) of the proviso to Section 138 has arisen but the Magistrate has the discretion to take cognizance even beyond such period, provided the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
The provisions of Section 142 of the N.I. Act are akin to Section 473 of the Criminal Procedure Code which while providing for limitation for taking cognizance of certain offences, saves the power of the Court upon being satisfied of the sufficient cause for taking cognizance beyond the period of limitation.
Impugned order set aside - petition allowed.
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2020 (9) TMI 1062
Dishonor of Cheque - invocation of revisionary jurisdiction under Section 397 read with Section 401 of the Code of Criminal Procedure - HELD THAT:- The continuation of these proceedings will not suffice any fruitful purpose whatsoever. Therefore, I am of the considered opinion that in view of the compromise, this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure read with 147 of Negotiable Instruments Act, should be invoked to compound the offence and consequently to quash the consequent proceedings.
The learned trial Court shall release all the amount in the manner discussed here-in-above on the production of certified copy of this judgment by respondent. In view of the above statement of the learned counsel for the petitioner, the respondent/complainant is entitled to receive the compensation amount of ₹ 3,34,000/-. In case, the compensation amount is deposited with the Trial Court or put in the Fixed Deposit, then all the interest accrued, thereupon shall also be given to the complainant. However, if there is short fall in deposit of compensation then such short fall shall be met with by the convict/petitioner on or before 31.3.2020. It is made clear that the interest, if any, accrued upon the fixed deposit shall not be treated towards compensation and total compensation amount shall have to be deposited by the convict/petitioner - the petitioner/convict shall deposit 15% of the cheque amount before the H.P. State Legal Services Authority, Shimla. The compensation awarded is ₹ 3,34,000/- therefore, 15% of the same comes to ₹ 50,100/-.
Criminal Revision is disposed of.
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