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Showing 61 to 64 of 64 Records

• 2016 (3) TMI 333
  

  Maintainability of appeal - whether against the order dated 22.9.2009 passed by the Recovery Officer an appeal under Section 30 of the RDDB Act was maintainable before the DRT? - Recovery of Debts Due to Banks and Financial Institution - Held that:- Undoubtedly the order passed by the Recovery Officer on 22.9.2009 has vital bearing on the rights of the petitioners. As long as the order that Recovery Officer may pass in exercise of powers under Sections 25 to 28 of the RDDB Act and which acts prejudicially or is injurious to a person, such person would be a person aggrieved. An appeal at the hands of such person would be maintainable under Section 30 of the Act.

  As noticed earlier, DRT had dismissed the appeal after taking into account the objections of the petitioners also. Since it is pointed out that the bank is attempting to recover the dues of the defaulters since long without success, we would instead of relegating the proceedings to the DRT, place it before the DRAT for decision on the appeal of the petitioners on merits. We would request the DRAT to give priority consideration to such appeal and dispose of the same preferably before 31.8.2016. The interim formula granted by this Court earlier shall inure till 31.8.2016. If thereafter the appeal is not disposed of, it would be open to the petitioners to apply before the DRAT for further relief.

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• 2016 (3) TMI 290
  

  Offense punishable under Section 138 of the Negotiable Instruments Act - Held that:- Legislature has already made it clear that the company includes any body corporate which includes a firm or other association of individuals and director in relation to a firm means a partner in the firm. On this count also, when Section 141 of the Negotiable Instruments Act and explanation thereto does not make any distinction between the company and the partnership firm, there is absolutely no reason to draw such distinction while making applicable the law laid down by the Apex Court in Aneeta Hada (2012 (5) TMI 83 - SUPREME COURT OF INDIA ) to the partnership firm merely because in that judgment the Apex Court was considering the eventuality of nonjoining of the company. The basic premise of holding either the director or the partner liable for prosecution being the same that of the vicarious liability. Therefore, once the company is held to be an essential party and that arraigning of a company as an accused is imperative for prosecution under Section 141 of the Negotiable Instruments Act, it necessarily follows that arraigning of a partnership firm is also imperative for prosecution against the partners under Section 141 of the Negotiable Instruments Act. The prosecution launched against only one of the partners of the partnership firm, without joining the partnership firm, cannot be maintainable.

  In view of the specific provisions of the Act itself, it is very difficult for the Court to take a view that a partnership firm for the purpose of Section 138 read with Section 141 of the Act is not a legal entity, and therefore, it need not be made an accused in the complaint. The decisions relied upon by the learned counsel appearing for the petitioner are of no avail in any manner.

  Power to proceed against other persons appearing to be guilty of offence - Will the situation be saved by virtue of Section 319 of the Cr.P.C., which is sought to be invoked in the present case?- Held that:- By virtue of a legal fiction, it cannot be said that on the date of filing of the complaint, the Court was justified in taking cognizance and issue process against the partners in the absence of the legal entity and no fault could be found so far as the legality and validity of the cognizance is concerned. The legal fiction is altogether for a different purpose and it should not be brought in aid of curing a serious defect or infirmity in the complaint or the order taking cognizance. When Subsection (4)(b) of Section 319 of the Code says that it will be presumed that the newly added person had been an accused person when the Court took cognizance of the complaint upon which the inquiry or trial was commenced, the same indicates that the Court is not empowered to take cognizance of any fresh offence if any accused is impleaded by invoking Section 319 and the newly added accused could be tried only for the offence already taken cognizance against the other accused.

  The policy of the Code is that the offence can be taken cognizance of once only and not repeatedly upon discovery of further particulars. In a given case, the complainant may not even know the names and other particulars of the offenders, and it would, therefore, be sufficient for him to lodge a complaint making the persons who are known as the accused. When such a trial proceeds against the known accused, if the evidence led in trial discloses offences committed by other persons who could be tried along with the accused, then there need not be a fresh complaint and fresh order of cognizance against those persons. I reiterate that the complaint was liable to be dismissed on the very first day of its presentation and no process could have been issued against the partners in the absence of the partnership firm. Thus that the application under Section 319 of the Cr.P.C. is not maintainable, and the Court below rightly rejected the same.

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• 2016 (3) TMI 121
  

  Auction sale - whether the auction was conducted in a fair and transparent manner? - introduction of a different buyer - Held that:- Considering that the petitioner had defaulted in making good the offer of deposit ₹ 21 lacs within one week and he had moved the second application after more a year of the auction, the Recovery Officer rightly found that the intention of the petitioner was not bona fide and he merely intended to delay the proceedings.

  Tribunal has rightly held that the attempt by the petitioner to introduce a different buyer (Sh. Shivam Aggarwal), with the offer of ₹ 18 lacs after one year of the auction, and that too after his failure to make good the initial offer of ₹ 21 lacs within the stipulated period had been unfairly entertained. Resultantly, the petitioner even successfully misled the Appellate Tribunal also to urge that he had a better buyer which led to inter se bidding. Thereafter, he introduced the father of Sh. Shivam Aggarwal and still later Mr. Anand Goyal as the intending buyer. Thus, introducing a new purchaser every time.

  Despite many legal hurdles in the maintainability of his appeals the petitioner has been given more than a fair latitude to furnish a better buyer. Clearly this process of inter se bidding cannot be carried on ad infinitum. The auction was held on 05.02.2007. No legal or procedural infirmity having been found in the auction proceedings, it is high time that the proceedings attain finality. As against the original auction price of ₹ 12.10 lacs, the auction purchaser has now been held bound to deposit a sum of ₹ 25 lacs.

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• 2016 (3) TMI 32
  

  Criminal proceedings initiated against the appellants under Sections 419 and 420 IPC - cheating - whether alleged acts of the appellants No. 2 and 3 were committed while acting in discharge of their official duties? - Held that:- As per the terms of the technology transfer agreement, ARCI has to conduct performance guarantee tests and in those tests when ARCI was unsuccessful in achieving the targeted specifications, ARCI cannot be said to have acted with dishonest intention to cheat the respondent. Appellants- ARCI is a structure of Scientists, Team Leader and Associate Director and it is the team leader who actually executes the project, the job of Associate Director and Director is to monitor/review progress of the project. Appellants No.2 and 3 who were the Associate Director and Director of ARCI respectively were only monitoring the progress of the project cannot be said to have committed the offence of cheating. In the facts of the present case, in our view, the allegations in the complaint do not constitute the offence alleged and continuation of the criminal proceeding is not just and proper and in the interest of the justice, the same is liable to be quashed.

  In the result, the impugned order is set aside and this appeal is allowed. The criminal proceedings against appellants No.1 to 3 in CC No. 840 of 2008 on the file of II Metropolitan Magistrate at Cyberabad, is quashed.

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