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Showing 1 to 20 of 692 Records
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2006 (7) TMI 745 - BOMBAY HIGH COURT
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... ... ..... presented and dishonoured should be the place for detail enquiry and adjudication of all the issues. In such matters basic parties including witnesses are definitely need to play relevant role during the trial. The convenience of all the parties, in the facts and circumstances of the case and considering the scheme is also important facet that goes to support the case of the petitioner that the complaint ought to have been filed at Nagpur and not at Aurangabad. 12. Taking all this into account, the impugned order dated 4-4-2006 is quashed and set aside. The application filed by the petitioner is allowed. The complaint is dismissed for want of jurisdiction. However, liberty is granted to the complainant to file complaint at Nagpur within 30 days and the concerned J.M.F.C. to proceed with the matter within reasonable time by giving notice and full opportunity to both the parties. The Criminal Revision Application is, therefore, allowed in terms of prayer Clause 1(D). No costs.
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2006 (7) TMI 744 - BOMBAY HIGH COURT
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... ... ..... ourt reported in 1986(4) S.C.C. 416 (Binod Singh v. District Magistrate, Dhanbad, Bihar and ors.)12. The detenu had surrender after the detention order and, therefore, the Court held that the order of detention was justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release. This case is also not applicable to the facts of the present case. 15. Therefore to sum up, merely because the detenu is exonerated in the adjudication proceedings is no ground to invalidate the detention order. It is to be noted here that the adjudication order exonerating the detenu came to be passed after the detention order and even then this fact was not required to be considered because the detenu was absconding, therefore we do not see any merit in this petition. Hence the following order - ORDER The petition is dismissed. Rule is discharged. Petition dismissed.
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2006 (7) TMI 743 - DELHI HIGH COURT
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... ... ..... may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper no judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs. In our considered opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case. There is no proper explanation of the delay, much less a reasonable or satisfactory explanation. We reject the application of the appellant. Consequently, the appeal filed by the appellant also stands dismissed. CM 7300/2005 The application stands dismissed as having become infructuous.
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2006 (7) TMI 742 - ORISSA HIGH COURT
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... ... ..... ntiff-opposite party No. 1 had assured him that she would withdraw her claim against the Petitioner. Such a stand taken by the Petitioner is stoutly denied by the Defendant-opposite party No. 1. No other ground has been taken in the petition filed under Order 8, Rule 1 of the Code of Civil Procedure for setting aside the ex parte order. It is not understood as to how the Petitioner took twelve years to know that the Plaintiff-opposite party No. 1 has not kept her promise even if it is accepted that such a promise had been made. There being no explanation for filing the application twelve years after the Petitioner was set ex parte, I am of the view that neither good ground nor sufficient ground has been assigned in the petition for setting aside the ex parte order. I, therefore do not find any justification to interfere with the order passed by the trial Court in rejecting such application. 6. The writ application is devoid of any merit and accordingly, the same is dismissed.
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2006 (7) TMI 741 - KERALA HIGH COURT
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... ... ..... by now and to wait from 2002 for the redressal of his grievances. He deserves to be compensated satisfactorily. 6. In the result a) This Crl. R.P. is allowed in part; b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I. Act are upheld; c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to pay a fine of Rs. 15,000/- (Rupees Fifteen thousand only) and in default to undergo simple imprisonment for a period of 2 months. If realised the entire amount shall be released to the complainant under Section 357(1) Cr.P.C. The petitioner shall appear before the learned Magistrate on or before 31-8-2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till then. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed.
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2006 (7) TMI 740 - GUJARAT HIGH COURT
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... ... ..... dent company has failed to discharge its dues and inability to function in accordance with the provision of Companies Act, writ large on its face. 15. Today when the matter came up for hearing, the company showed its inability to pay the amount of petition. Upon going through the averments made in the petition and submissions made by the learned advocate for the parties, record of the case and considering the fact that the company has lost it's substratum, financial viability to run its affairs in accordance with provisions of the Companies Act and rules made thereunder and it has become bankrupt for paying its dues, the company is ordered to be wound up and the Deputy Official Liquidator is directed to take charge of the assets and properties movable and immovables, accounts books and all belongings of the company immediately and report to this Court within eight weeks of taking over the possession along with the inventory report. 16. The petition is allowed accordingly.
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2006 (7) TMI 739 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... the plea that the same is barred by time in view of the notice served by the complainant. As such, the plea of the respondent is not only self-contradictory but an after-thought also and has been apparently carved out to resist the claim of the complainant thereby frustrating the provisions of law. 14. In the wake of aforesaid discussion, we have no hesitation to interfere with the findings returned by the Trial Court. 15. It may be pointed out that the Trial Court dismissed the complaint by limiting its observations on the point of limitation only and merits of the complaint were not touched. Consequently, we accept the appeal, set aside the impugned judgment dated 18.7.2005 passed by the Judicial Magistrate, 1st Class, Faridabad and remit the case back to the Trial Court to proceed in accordance with law. Since the case is complete in all respects, therefore, Trial Court is directed to dispose of the case within one month from the date of receipt of the copy of this order.
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2006 (7) TMI 738 - KARNATAKA HIGH COURT
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... ... ..... by providing an opportunity to both sides. Accordingly, the judgment of acquittal is hereby set aside by allowing the appeal. The accused-Byrappa @ Byregowda is now in the custody. Therefore, the Learned X Additional City Civil and Sessions Judge, Bangalore City, shall secure the accused from the central prison and proceed to dispose of the matter. The fee of the Learned Amicus Curiae is fixed at Rs. 2,000.00. We have noticed in several cases the Trial Court have closed the prosecution side on the ground that the witnesses were not made available before the Court. This is nothing but unhealthy practice, which has to be borne in mind by the Trial Court that they ensure to get such witnesses to examine wherever it is so essential in the interest of justice or otherwise, it results that the real accused persons escape from the clutches of law unpunished. The Registrar (Judicial) is directed to submit a copy of this Judgment to the Trial Courts and to the Director of Prosecution.
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2006 (7) TMI 737 - DELHI HIGH COURT
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... ... ..... right for cross-examination of a witness, notwithstanding the fact that the statutory provision in Section 244(1) employs expression "evidence." 16. Thus, it follows from the above discussions that the proceedings before the Criminal Court at a stage prior to Section 203/204 Cr.P.C. will be inquiry. The statement of a complainant to be recorded under Section 200 Cr.P.C. will be evidence. In these circumstances, Section 145 of the Negotiable Instruments Act squarely applies and it will be permissible for the Court to receive the affidavit filed under Section 145 of the Negotiable Instruments Act at the stage of Section 200 Cr.P.C. and to act upon the same. It is unnecessary ordinarily to insist on personal appearance of the complainant to tender the sworn statement at that stage." 6. For the foregoing reasons, this petition is dismissed. Needless to mention, the observations made by this Court will not prejudice the case of the petitioner before the trial court.
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2006 (7) TMI 736 - BOMBAY HIGH COURT
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... ... ..... ned Counsel for the complainant/non-applicant No. 1, there were averments in complaint specifically stating that the accused were in-charge of and responsible to company for conduct of its business. In S.V. Muzumdar's case, it was held that whether a person is in-charge of or is responsible to the company (firm) for conduct of the business is to be adjudicated on the basis of material to be placed by the parties. So, firstly it is for the complainant to aver in the complaint and thereafter to place material in support of the averments. In the present case such averments are lacking in the complaint and as such the complaint cannot proceed against the applicants. 14. In view of the discussion above, the order of the revisional Court dated 28-2-2006 in Criminal Revision Application No. 155/2005 is set aside. Summary Criminal Case No. 72/2005 pending on the file of the Judicial Magistrate, First Class, Achalpur is hereby quashed. 15. Rule is made absolute in the above terms.
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2006 (7) TMI 735 - ANDHRA PRADESH HIGH COURT
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... ... ..... greed to allot the plot, whether he is entitled for allotment of the same plot when it was allotted to somebody else and when the Court considers these aspects to come to a conclusion whether it amounts to breach of trust, which entitled the complainant to get any damages etc., are matters to be decided by the Civil Court. As there is no prima facie material in the complaint given by the complainant to attract the ingredients of Section 406 or 420 of I.P.C., I am of the opinion that the continuation of the investigation would lead to unnecessary exercise and hardship to the accused. In the light of the above circumstances, I do not find any prima facie material to prosecute the petitioners for the offence under Section 406 or 420 of I.P.C., therefore, the F.I.R. registered against the petitioner is liable to be quashed. 17. In the result, the Criminal Petition is allowed by quashing F.I.R. No. 21 of 2005 on the file of I town P.S. Nizamabad registered against the petitioners.
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2006 (7) TMI 734 - SUPREME COURT
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... ... ..... h crimes repeatedly or persistently and prima facie there should be continuity in the commission of those offences. (See Ayub alias Pappukhan Nawabkhan Pathan v. S.N. Sinha 1990 CriLJ 2232). From one single transaction though consisting of several acts, a habit cannot be attributed to a person. 10. Judged in the background of legal position delineated above the order of detention cannot be maintained because it only refers to one act. There is also no material to justify the conclusion that the accused was habitually committing crime. There is no reference to any other crime. Therefore, the order of detention cannot be maintained. The High Court has not considered this aspect in the proper perspective. The order of detention in respect of the detenu which was passed by the Commissioner of Police, Chennai on 1.8.2005 is quashed. The order of the High Court is set aside. Detenu be released from detention forthwith unless required to be otherwise detained. The appeal is allowed.
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2006 (7) TMI 733 - BOMBAY HIGH COURT
Dishonour Of Cheque - Offence punishable u/s 138 of the Negotiable Instruments Act - Non-compliance of the notices - Presumption u/s 27 of the General Clauses Act - conviction of the accused - HELD THAT:- In this case, the notice was sent by registered post to the correct address of the accused and the same is therefore deemed to have been served on the accused in terms of Section 27 of the General Clauses Act, 1897. The presumption available u/s 27 cannot be rebutted either by way of mere suggestion or by mere denial in the statement u/s 313 of the Code. The courts below have rightly concluded that the notice was duly served on the accused.
Admittedly, the complainant and the accused had received a notice dated 8.10.2003, from the said Punjab National Bank, calling upon them to clear the amount due on the loan borrowed by the accused and to which the complainant was one of the guarantors. It is not the case of the accused that he had enough money with him to repay the said loan, if at all the complainant had approached him, after receipt of the said notice. The accused in fact has not spelt out in his said 313 statement as to how the three cheques given by him as security to the complainant were to be used.
It has been submitted on behalf of the accused that the said three cheques were given to the complainant so that in case the Bank filed a suit against the complainant and the complainant was compelled to make the payment towards the said sum due to the said Punjab National Bank, the said cheques would give security to the complainant. I am still at pains not to understand as to how the said arrangement, was to work.
The learned Additional Sessions Judge has noted that the balance amount in the account of the accused was 238.34. If the balance amount of the accused in the account never exceeded a sum of ₹ 245/-, one fails to understand as to what sort of security the accused had given to the complainant by way of the said cheques. The learned acquitting J.M.F.C. has proceeded to examine the case of the complainant as if the complainant had no presumptions in his favour. She might have been right in case the law did not create the three sets of presumptions which have been created. This is a case, as already noted, where the complainant had discharged his initial burden that he had advanced to the accused a sum of ₹ 1,70,000/- and in payment of the same, the accused had given the said three cheques.
In my view, considering the facts of the cases, the learned acquitting J.M.F.C. was certainly not justified in acquitting the accused u/s 138 of the Act. On the other hand, the conviction of the accused by the convicting J.M.F.C. and as upheld by the learned Additional Sessions Judge in Criminal Appeal, could not be faulted. Both the said Courts have exhaustively dealt with the case of the complainant viz-a-viz the defence taken by the accused and has come to the conclusion that the case of the complainant was proved beyond reasonable doubt against the accused. As a result, there is no merit in the Criminal Revision Application and, therefore, the same is hereby dismissed.
As regards Criminal Appeal, for the very reasons discussed herein above, the acquittal of the accused u/s 138 of the Act, cannot be sustained. The Judgment and Order dated 06.04.2005 of the learned J.M.F.C. in C.C, therefore, deserves to be set aside and consequently the accused is hereby convicted u/s 138 of the Act for failing to pay the amount due to the complainant under the said cheque of ₹ 70,000/- dated 1.12.2003.
At the time of hearing on the point of sentence on behalf of the accused, the sentence imposed by the convicting Magistrate has been brought to my notice. In the said case, for default in payment of the amount due on the cheque of ₹ 1,00,000/-, the learned J.M.F.C., was pleased to sentence the accused to undergo S.I. for two months and to pay a compensation of ₹ 1,00,000/-, and in default ordered the accused to undergo six month S.I. With a view not to have disparity in the sentence, I hereby sentence the accused u/s 138 of the Act, to undergo S.I. of 45 days and to pay compensation of ₹ 70,000/ - in default to undergo S.I. of four months. The sum of ₹ 50,000/- deposited by the accused before the trial Court pursuant to Order dated 13.04.2006, shall be paid to the complainant, to be adjusted from the compensation ordered to be paid.
By consent, the accused is given time of two weeks either to surrender or pay the amount due.
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2006 (7) TMI 732 - BOMBAY HIGH COURT
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... ... ..... suit cheques represent an amount of ₹ 1.90 lakhs which was not at all the debt or the liability of the accused towards the Complainant and, therefore, it could not be said that the suit cheques were issued by the accused to the Complainant towards debt or a liability. It is well settled that when a cheque is for an amount more than due by the accused, Section 138 of the Act is not attracted. In this context, reference could be made to a decision of this Court in M/s. Pawan Enterprises v. Satish H. Verma(2003 CRI.L.J. 2146) wherein the cheque was for an amount of ₹ 17,745/- and it was undisputed that what was due by the accused was only-27- ₹ 10,975/- and, therefore, the Court held that it could not be said that the cheque was issued for discharging the liability to the extent of ₹ 17,745/- when what was due was only ₹ 10,975/- . 20. In the light of the above, I find there is no merit in these appeals. Consequently, the same are hereby dismissed.
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2006 (7) TMI 731 - KERALA HIGH COURT
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... ... ..... for issue and return of notice on the respondent. 11. In this result (a) This revision petition is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I. Act are upheld. But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C. to pay an amount of ₹ 60,000/- as compensation and in default to undergo S.I. for a period of two months. If realised the entire amount shall be released to the complainant. The petitioner shall appear before the learned Magistrate on or before 1-9-2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed.
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2006 (7) TMI 730 - SC ORDER
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... ... ..... u D., Adv. Mr. R. Rajagopalan, Adv. Mr. M.P. Vinod, Adv. Mr. Ajay K. Jain, Adv. Mrs. Seema Jain, Adv. Mr. Dileep Pillai, Adv. Mr. J. Vellapally, Sr. . Mr. Manu Nair, Adv. for Mr. S.A. Shroff & Co. ORDER Delay condoned. Heard. We see no reason to interfere. The special leave petitions are dismissed.
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2006 (7) TMI 729 - SUPREME COURT
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... ... ..... f H.P. v. A Parent of a Student of Medical College, Simla and Ors. 1985 3SCR676 , it has been said that public interest litigation is a weapon which has to be used with great care and circumspection. These aspects have been highlighted in Ashok Kumar Pandey v. State of West Bengal AIR2004SC280 and Dr. B. Singh v. Union of India and Ors. AIR2004SC1923 and Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. AIR2005SC540 . 16. In the instant case, the appellant has styled the petition as PIL though it relates to a tender where she herself claims to be a tenderer. In another petition, questioning legality of the auction, she is a party. The High Court was perfectly justified in dismissing the writ petition styled as a PIL. We make it clear that Writ Petition No. 349/2003 which is stated to be pending shall be considered in its own perspective in accordance with law. We express no opinion on the merits of the said writ petition. The appeal is accordingly dismissed. No costs.
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2006 (7) TMI 728 - MADHYA PRADESH HIGH COURT
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... ... ..... ry, which was not conducted by the assessing authority at the time of assessment and therefore remand order cannot be interfered with on this ground. 10. As regards question No. 2 is concerned, the said question does not arise for consideration, firstly in view of answer of question No. 1. It clearly appears from the order Annex. A-l, which is an assessment order passed by the ITO that there was no enquiry in the matter whether the income which is derived from the agricultural land is the income of the assessee-firm or its partneRs. Once the matter is remanded to the assessing authority for holding an enquiry in the matter, the question No. 2 does not arise for consideration. 11. In view of the matter, this appeal is allowed. The impugned order passed by the Tribunal is set aside and the assessing authority is directed to proceed with an enquiry in accordance with the order passed by the CIT. 12. In the facts and circumstances of the case, there shall be no order as to costs.
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2006 (7) TMI 727 - SUPREME COURT
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... ... ..... s noted above has been given in the circumstances indicated above. 9. In some cases, this Court after noticing that refusal by appropriate Government to refer the matter for adjudication was prima facie not proper, directed reference instead of directing reconsideration. (See Nirmal Singh v. State of Punjab (1984)IILLJ396SC , Sankari Cement Alai Thozhilalar Munnetra Sangam v. Management of India Cement Ltd., V. Veerarajan and Ors. v. Government of Tamil Nadu and Ors. (1987)ILLJ209SC , Sharad Kumar v. Govt. of N.C.T. of Delhi (2002)IILLJ275SC . 10. The parties shall be permitted to place materials in support of their respective stands. We make it clear that we have not expressed any opinion on the merits of the case. The Tribunal shall make an effort to dispose of the reference within four months of the receipt of the reference from the State Government, which shall be done within three months from today. The appeal is allowed to the aforesaid extent with no order as to costs.
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2006 (7) TMI 726 - SC ORDER
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... ... ..... Arijit Prasad,Adv., Mr. B.V. Balaram Das,Adv. For the Respondent None ORDER Delay condoned. The special leave petition is dismissed.
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