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Indian Laws - Case Laws
Showing 1 to 20 of 25355 Records
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2024 (4) TMI 897
Legal implication of a promotional trailer - promotional trailer is an offer or a promise - unfair trade practice - absence of specific content from the trailer in the movie - whether there is any ‘deficiency’ in the provision of the entertainment service that the consumer has availed by paying the consideration through the purchase of a ticket? - HELD THAT:- A promotional trailer is unilateral. It is only meant to encourage a viewer to purchase the ticket to the movie, which is an independent transaction and contract from the promotional trailer. A promotional trailer by itself is not an offer and neither intends to nor can create a contractual relationship. It is well-established in contractual jurisprudence that an advertisement generally does not constitute an offer and is merely an ‘invitation to offer’ or ‘invitation to treat’.
Since the promotional trailer is not an offer, there is no possibility of it becoming a promise. Therefore, there is no offer, much less a contract, between the appellant and the complainant to the effect that the song contained in the trailer would be played in the movie and if not played, it will amount to deficiency in the service. The transaction of service is only to enable the complainant to watch the movie upon the payment of consideration in the form of purchase of the movie ticket. This transaction is unconnected to the promotional trailer, which by itself does not create any kind of right of claim with respect to the content of the movie.
In various decisions, LAKHANPAL NATIONAL LTD. VERSUS M.R.T.P. COMMISSION AND ANOTHER [1989 (5) TMI 321 - SUPREME COURT], KLM ROYAL DUTCH AIRLINES VERSUS DIRECTOR GENERAL OF INVESTIGATION AND REGISTRATION [2008 (10) TMI 353 - SUPREME COURT]. This Court has held that a false statement that misleads the buyer is essential for an ‘unfair trade practice’. ibid. A false representation is one that is false in substance and in fact, and the test by which the representation must be judged is to see whether the discrepancy between the represented fact and the actual fact would be considered material by a reasonable person.
The ingredients of ‘unfair trade practice’ under Section 2(1)(r)(1) are not made out in this case. The promotional trailer does not fall under any of the instances of “unfair method or unfair and deceptive practice” contained in clause (1) of Section 2(1)(r) that pertains to unfair trade practice in the promotion of goods and services. Nor does it make any false statement or intend to mislead the viewers - There is another important distinction that we must bear in mind, i.e., the judicial precedents on this point do not relate to transactions of service relating to art. Services involving art necessarily involve the freedom and discretion of the service provider in their presentation. This is necessary and compelling by the very nature of such services. The variations are substantial, and rightly so.
The findings of the impugned order that there is deficiency of service and unfair trade practice is set aside - appeal allowed.
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2024 (4) TMI 896
Dishonour of Cheque - territorial jurisdiction - Foreign instrument - Cheque not made payable in India; and, was not drawn on a bank in India - whether the presentation of the subject cheque at the Branch in Greater Kailash-I, New Delhi will be sufficient to invoke the provisions of Section 138 of the NI Act and make the complaint filed by the respondent no. 2 as maintainable? - HELD THAT:- In the present case, the cheque in question is not made in India; it was not made payable in India; and, was not drawn on a bank in India. It is, therefore, not an ‘inland instrument’ - In the present case, the cheque in question is therefore, a ‘foreign instrument’.
While it is true that in the absence of stipulation that the cheque can only be presented for payment at Dubai, the cheque could be deposited by the respondent no. 2 at its bank in India as far as Section 135 of the NI Act, it requires the cheque to be specifically made payable at a place different from where it was made or indorsed. In my opinion, therefore, merely because there is no prohibition on the cheque being presented for payment at a place different from where it is made or indorsed, Section 135 of the NI Act cannot be attracted - as far as a cheque is concerned, unless specifically made payable at some other place, it must be presented at the bank upon which it is drawn, that is, where the bank of the drawer is situated. This would also have the effect on the place where the offence under Section 138 of the NI Act is said to have been committed, as shall be discussed herein below.
In DASHRATH RUPSINGH RATHOD VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (8) TMI 417 - SUPREME COURT], the Supreme Court has held that a reading of Section 138 of the NI Act in conjunction with Section 177 of the Cr.P.C. leaves no manner of doubt that the return of the cheque by the drawee bank alone constitutes the commission of the offence and indicates the place where the offence is committed. It held that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located. It held that the complainant is statutorily bound to comply with Section 177, etc., of the Cr.P.C. and therefore, the place or situs where the Section 138 complaint is to be filed is not of his choosing; the territorial jurisdiction is restricted to the court within whose local jurisdiction the offence was committed, which is where the cheque is dishonoured by the bank on which it is drawn.
The offence under Section 138 of the NI Act is deemed to have been committed at a place where a cheque is delivered for collection at the branch of the bank of the payee or holder in due course, and the offence shall be inquired into and tried only by a court within whose local jurisdiction, if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated.
In the present case, the cheque was presented for payment by the respondent at Delhi. There is no prohibition of the cheque being deposited by the respondent no. 2 for collection in Delhi. Therefore, in terms of Section 142(2) of the NI Act, the Court at Delhi shall have jurisdiction to inquire into and try the offence under Section 138 of the NI Act.
In the present case, due to the amendment in Section 142 of the NI Act, now the dishonour of the cheque, due to its presentation for payment at the bank of the respondent no. 2 at Delhi, is deemed to have taken place at Delhi. Though, Section 134 of the NI Act states that in absence of a contract to the contrary, the liability of the drawer of a foreign cheque is regulated in all essential matters by the law of the place where he made the cheque, there is nothing in the said provision which would exclude the application of Section 138 of the NI Act read with Section 142 of the NI Act. Merely because the payee or holder in due course of a foreign cheque chooses to present the cheque in India out of mala fide, the application of the provision of Section 138 of the NI Act and the jurisdiction of the court where such cheque is deposited for payment, cannot be ousted.
The unexplained delay itself is sufficient ground for this Court to refuse to exercise its inherent jurisdiction under Section 482 of the Cr.P.C. to quash the complaint at this belated stage.
There are no merit in the present petition, the same is dismissed.
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2024 (4) TMI 870
Arbitral Proceedings - Computation of one-year period for completing the proceedings - Rejection of request of the petitioner to extend the time and proceeded to post the proceedings for issues - exclusion of days during which the proceedings were stayed, for calculation of timeline of twelve months for completion of proceedings - HELD THAT:- From the order sheet of the Arbitral proceedings, it is seen that the petitioner who is respondent before the Arbitral Tribunal, took more than three to four adjournments to file its objection statement and also to file counterclaim. Thereafter, it took several adjournments and also sought extension of time to file surrejoinder. Admittedly, the Arbitral Tribunal entered reference on 17.11.2022, since then, the petitioner has filed six writ petitions challenging different interlocutory orders passed by the Arbitral Tribunal.
It is deemed appropriate to dismiss the present writ petition with costs of Rs. 25,000/-, payable to the ‘Karnataka State Legal Services Authority’. The above cost shall be paid within two weeks from today and shall produce receipt for having paid before the Arbitral Tribunal - the question of maintainability of writ petition raised by respondents need no perusal.
There is no merit in the writ petition - Petition dismissed.
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2024 (4) TMI 783
Dishonour of Cheque - Scope of interim compensation - Liability of the Director the Company - Provisions of Section 143A of the NI Act is mandatory in nature or not - HELD THAT:- In the present case, the Impugned Order dated 24.07.2021 reflects that the learned Trial Court was of the opinion that Section 143A of the NI Act, is ‘mandatory’ in nature and interim compensation has to be granted to the complainant in terms of the same as a rule and not as an exception. This view of the learned Trial Court cannot be upheld in view of the judgment of the Supreme Court in RAKESH RANJAN SHRIVASTAVA VERSUS THE STATE OF JHARKHAND & ANR. [2024 (4) TMI 719 - SUPREME COURT].
The Impugned Orders do not reflect any consideration of the learned Trial Court to the plea of the petitioners that the respondent no. 2 also holds security in form of the flats and in form of a statement made in the course of the proceedings before the High Court of Judicature at Bombay that the said company will not be disposing of the flats or creating any third-party rights in the plot of land which is the subject property. This was an important consideration which should have been taken into account by the learned Trial Court while deciding on the application filed by the respondent no. 2 under Section 143A of the NI Act.
What is also relevant is that Section 143A of the NI Act empowers the Court to pass a direction for payment of interim compensation only against the “drawer of the cheque”. In the present case, admittedly, the drawer of the cheques is the company and not the petitioners. The petitioners have been arrayed as accused invoking Section 141 of the NI Act.
The Impugned Order dated 11.03.2022, however, relies upon Section 141 of the NI Act to hold that a direction to pay the interim compensation under Section 143A of the NI Act can be made even against persons who, though are not the ‘drawer of the cheque’, are still deemed to have committed the offence under Section 138 of the NI Act. This view of the learned Trial Court cannot be sustained.
The Impugned Orders, having been premised on incorrect appreciation of law and having ignored vital and relevant considerations for passing an order under Section 143A of the Act, cannot be sustained - petition allowed.
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2024 (4) TMI 782
Dishonour of Cheque - compounding of offences - amicable settlement of disputes - Sections 138 and 147 of the Negotiable Instruments Act - HELD THAT:- In the facts of the instant case and the statutory provisions and the mandate of the Hon’ble Supreme Court, in cases of Kanchan Mehta [2017 (10) TMI 218 - SUPREME COURT] and P. Mohanraj [2021 (3) TMI 94 - SUPREME COURT], once the proceedings under Section 138 have been held to be proceedings in the form of a civil sheep in a criminal wolf’s clothing, therefore, once the petitioner-accused has amicably decided to settle/liquidate/discharge his liability, though, the transaction-proceedings have a tinge of criminal liability, then, on settling the entire liability in view of Section 147 of the Negotiable Instruments Act, the compounding of offences, on discharge of liability, appears to be genuine, which is certainly is a step towards securing the ends of justice. It is relevant to observe that once the Respondent-Complainant who had initiated the proceedings under Section 138 of the Negotiable Instruments Act, 1881, has received his cake then, no useful purpose will be achieved in continuing the criminal proceedings, against the accused-petitioner who has discharged/liquidated his liability.
Notably, the object of Section 147 of the Negotiable Instruments Act, 1881, is that in case the accused under the aforesaid enactment remits/discharges or liquidates his liability then such a person can be absolved of the criminal action-prosecution by permitting compounding of offence in proceedings under Section 138 of the Act. Moreover, once the petitioner-accused has discharged/liquidated his liability towards Respondent- Complainant, therefore, the continuance of criminal proceedings will not serve any purpose. The compounding of an offence would enable both the parties to lead life of respect and dignity in the society. Once, no dispute remains between the parties to the lis, then obviously the law cannot be so harsh so as to stand as a wall between the parties notwithstanding the amicable settlement inter se the parties - The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice.
This Court on the basis of the material placed on record is satisfied that the petitioner-accused [Sunil Kumar] and Respondent No.1-Complainant have settled the dispute and Respondent No.1-Complainant has no grudges against the petitioner accused, who has liquidated/discharged/remitted his liability in favour of the complainant. In these circumstances, allowing the judicial prosecution to continue will result in disturbing the peace and harmony but will also create or give rebirth to bitterness and enmity amongst them. Moreover, the ends of justice would be satisfied in case, the parties herein are allowed to compromise.
Since, the petitioner-accused [Sunil Kumar] is suffering custody in Sub Jail, Nurpur, District Kangra, [H.P.]; therefore, the Respondents-State Authorities are directed to release the petitioner-accused [Sunil Kumar], if not required in any other case. Release warrants be prepared and consequential action be taken expeditiously in accordance with law - Petition disposed off.
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2024 (4) TMI 719
Dishonour of Cheque - grant of interim compensation - whether the provision of sub-section (1) of Section 143A of the Negotiable Instruments Act, 1881 (for short, ‘the N.I. Act’), which provides for the grant of interim compensation, is directory or mandatory? - factors to be considered while exercising powers under sub-section (1) of Section 143A of the N.I. Act.
HELD THAT:- In the case of Section 143A, the power can be exercised even before the accused is held guilty. Sub-section (1) of Section 143A provides for passing a drastic order for payment of interim compensation against the accused in a complaint under Section 138, even before any adjudication is made on the guilt of the accused. The power can be exercised at the threshold even before the evidence is recorded. If the word ‘may’ is interpreted as ‘shall’, it will have drastic consequences as in every complaint under Section 138, the accused will have to pay interim compensation up to 20 per cent of the cheque amount. Such an interpretation will be unjust and contrary to the well-settled concept of fairness and justice. If such an interpretation is made, the provision may expose itself to the vice of manifest arbitrariness - there are no manner of doubt that the word “may” used in Section 143A, cannot be construed or interpreted as “shall”. Therefore, the power under sub-section (1) of Section 143A is discretionary.
Section 143A can be invoked before the conviction of the accused, and therefore, the word “may” used therein can never be construed as “shall”. The tests applicable for the exercise of jurisdiction under sub-section (1) of Section 148 can never apply to the exercise of jurisdiction under subsection (1) of Section 143A of the N.I. Act.
Factors to be considered while exercising powers under sub-section (1) of Section 143A of the N.I. Act - HELD THAT:- When the court deals with an application under Section 143A of the N.I. Act, the Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application under sub-section (1) of Section 143A. The presumption under Section 139 of the N.I. Act, by itself, is no ground to direct the payment of interim compensation. The reason is that the presumption is rebuttable - While deciding the prayer made under Section 143A, the Court must record brief reasons indicating consideration of all the relevant factors.
In the present case, the Trial Court has mechanically passed an order of deposit of Rs.10,00,000/- without considering the issue of prima facie case and other relevant factors. It is true that the sum of Rs.10,00,000/- represents less than 5 per cent of the cheque amount, but the direction has been issued to pay the amount without application of mind. Even the High Court has not applied its mind - the Trial Court is directed to consider the application for grant of interim compensation afresh. In the meanwhile, the amount of Rs. 10,00,000/- deposited by the appellant will continue to remain deposited with the Trial Court.
The impugned orders are set aside, and the application made by the complainant under Section 143A (1) of the N.I. Act is restored to the file of Judicial Magistrate First Class, Bokaro - appeal allowed in part.
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2024 (4) TMI 669
Dishonour of Cheque - Plea to expedite the trial of a complaint - Case of applicant is that though this complaint under the Act, 1881 was filed in the year 2022, but the trial could not be concluded - Section 143(2) of NI Act, 1881 - HELD THAT:- The Apex Court in the case of INDIAN BANK ASSOCIATION AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2014 (5) TMI 750 - SUPREME COURT], has issued direction for expeditious disposal of the cases under the Act, 1881 where it was held that We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the above-mentioned procedures for speedy and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act.
From the above mentioned judgements of Hon'ble Apex Court, it is clear that the Apex Court for expeditious disposal of cases under the Act, 1881 has issued several directions which the concerned court/Magistrate has to follow while deciding the cases under the Act, 1881. From the observations of the Apex Court as well as analysis of Sections 138 & 143 of the Act, 1881, it is expedient that all the proceedings under the Act, 1881 should be concluded expeditiously without going into unnecessary technicality.
This Court directs the Chief Judicial Magistrate, Sant Kabir Nagar to conclude the trial of Complaint Case No. 10260 of 2022 (Shyam Ji Vs. Bhagwandas Chaudhary) u/s 138 Negotiable Instrument Act, P.S. Bakhira, District Sant Kabir Nagar, keeping in mind the direction of the Apex Court, expeditiously preferably within a period of six months from the date of receipt of certified copy of this order, strictly in accordance with statutory provision of Sections 143(2) and 143(3) of the Act, 1881, if there is no legal impediment.
Application disposed off.
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2024 (4) TMI 668
Dishonour of Cheque - Grant of Bail - Mandate to deposit of a minimum of twenty percent of the fine or compensation awarded by the trial court - failure to consider the Statutory Provisions as enshrined U/S 148(1) & 148 (2) of NI Act 1881 - HELD THAT:- In the instant case, the Appellate court although vide order dated 29.02.2024 had admitted the appeal and also allowed the Bail Application moved by the appellant/petitioner but by the same order despite admitting the appeal preferred by the appellant/petitioner had erroneously rejected the stay and operation of the impugned order dated 16.02.2024 passed by the trial court and thereby, rejected the stay application (Paper No.5B) and further directed him to deposit amount of fine imposed by the trial court within a period of ten days' from the date of the order and also provided that in case of non-deposition of fine by the appellant/petitioner, the order of granting bail to the appellant/petitioner shall stand automatically cancelled, thus, the appellate court while passing the impugned order dated 29.02.2024 by which it has rejected to stay the operation of the order dated 16.02.2024 passed by the trial court has failed to consider the Statutory Provisions as enshrined under Section 148(1) and 148(2) of the Negotiable Instrument Act, 1881, which resulted in miscarriage of justice.
This Court finds that the Appellate Court has erred in law while rejecting the stay application of the appellant/petitioner, by which it was prayed by the appellant/petitioner to stay the fine of Rs.4,00,000/- imposed by the trial court while convicting him under Section 138 of the Negotiable Instruments Act, 1881 till the disposal of the appeal preferred by the appellant/petitioner before the Appellate Court.
Petition disposed off.
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2024 (4) TMI 600
Regularization of petitioners who had served as casual/daily wage workers for a period of more than 10 years when decision in Uma Devi was pronounced by Apex Court [2006 (4) TMI 456 - SUPREME COURT] - Reason for Tribunal's disinclination to grant relief was that no material could be brought on record to establish that appointment of petitioners was not illegal but merely irregular.
HELD THAT:- It is not dispute at the Bar by learned counsel for employer that the petitioners are equally situated as Ravi Verma & Ors [supra] for having completed more than 10 years of casual/daily wage services on the date 10.04.2006 when decision in Uma Devi was pronounced by Apex Court [2006 (4) TMI 456 - SUPREME COURT]. It is also not disputed by the learned counsel for employer that the petitioners herein were also appointed in similar manner as the case of Ravi Verma & Ors. and thus their appointments were not illegal but merely irregular and, therefore this Court is of the considered view that the benefit flowing from the decision of Uma Devi specially the directions in paragraph 53 of the said judgment squarely apply to the petitioners who are thus entitled to the same relief as extended by the Apex Court to Ravi Verma & Ors.
The period of 10 years which was pre-requisite for consideration for regularization as one time measure vide para 53 of Apex Court decision in Uma Devi, has been completed by all the petitioners herein. Therefore, the case of the petitioners is identical to the case of Ravi Verma and Ors. Accordingly, the objection raised by Shri Gopi Chourasia - Advocate on behalf of appellant stands rejected.
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2024 (4) TMI 557
Maintainability of curative petition - restoration of arbitral award which had been set aside by the Division Bench of the High court on the ground that it suffered from patently illegality.
Curative Jurisdiction may be invoked if there is a miscarriage of justice - HELD THAT:- In RUPA ASHOK HURRA VERSUS ASHOK HURRA & ANOTHER [2002 (4) TMI 889 - SUPREME COURT], a Constitution Bench of this Court dwelt on whether any relief is available against a final judgement of this Court after the dismissal of a petition seeking review of the judgement. Two opinions were authored. The main judgment was by Justice Syed Shah Quadri (on behalf of Chief Justice S P Bharucha, Justice Variava, Justice Shivraj Patil and himself). A concurring opinion was authored by Justice U C Banerjee - In his concurring opinion, Justice Banerjee also laid down a similar test of ‘manifest injustice’ to exercise the jurisdiction of this Court under Article 142 while entertaining a curative petition. In essence, the jurisdiction of this Court, while deciding a curative petition, extends to cases where the Court acts beyond its jurisdiction, resulting in a grave miscarriage of justice.
Scope of interference of courts with arbitral awards - HELD THAT:- The contours of the power of the competent court to set aside an award under Section 34 has been explored in several decisions of this Court. In addition to the grounds on which an arbitral award can be assailed laid down in Section 34(2), there is another ground for challenge against domestic awards, such as the award in the present case. Under Section 34(2-A) of the Arbitration Act, a domestic award may be set aside if the Court finds that it is vitiated by ‘patent illegality’ appearing on the face of the award.
In ASSOCIATE BUILDERS VERSUS DELHI DEVELOPMENT AUTHORITY [2014 (11) TMI 1114 - SUPREME COURT], a two-judge Bench of this Court held that although the interpretation of a contract is exclusively within the domain of the arbitrator, construction of a contract in a manner that no fair-minded or reasonable person would take, is impermissible. A patent illegality arises where the arbitrator adopts a view which is not a possible view. A view can be regarded as not even a possible view where no reasonable body of persons could possibly have taken it. This Court held with reference to Sections 28(1)(a) and 28(3), that the arbitrator must take into account the terms of the contract and the usages of trade applicable to the transaction. The decision or award should not be perverse or irrational. An award is rendered perverse or irrational where the findings are (i) based on no evidence; (ii) based on irrelevant material; or (iii) ignores vital evidence. Patent illegality may also arise where the award is in breach of the provisions of the arbitration statute, as when for instance the award contains no reasons at all, so as to be described as unreasoned.
While adjudicating the merits of a Special Leave Petition and exercising its power under Article 136, this Court must interfere sparingly and only when exceptional circumstances exist, justifying the exercise of this Court’s discretion - Unlike the exercise of power under Section 37, which is akin to Section 34, this Court (under Article 136) must limit itself to testing whether the court acting under Section 37 exceeded its jurisdiction by failing to apply the correct tests to assail the award.
The award was patently illegal - HELD THAT:- In the case at hand, the Division Bench found the award to be perverse, irrational and patently illegal since it ignored the vital evidence of CMRS certification in deciding the validity of termination. This, the Division Bench held, overlooked the statutory certification deeming it irrelevant without reasons and thus the award was patently illegal according to the test in Associate Builders - The Tribunal did not appreciate the individual import of the two phrases separately from each other. This was not a matter of mere “alternate interpretation” of the clause, but an unreasonable and uncalled for interpretation of the clause, which frustrated the very provision, and which no reasonable person would have accepted considering the terms of the clause. It is clarified that Tribunal could have still arrived at the conclusion that the steps taken during the cure period were not effective within the meaning of the clause for certain reasons. However, such discussion and reasoning is conspicuously absent.
In essence, therefore the award is unreasoned. It overlooks vital evidence in the form of the joint application of the contesting parties to CMRS and the CMRS certificate. The arbitral tribunal ignored the specific terms of the termination clause. It reached a conclusion which is not possible for any reasonable body of persons to arrive at. The arbitral tribunal erroneously rejected the CMRS sanction as irrelevant. The award bypassed the material on record and failed to reconcile inconsistencies between the factual averments made in the cure notice, which formed the basis of termination on the one hand and the evidence of the successful running of the line on the other. The Division Bench correctly held that the arbitral tribunal ignored vital evidence on the record, resulting in perversity and patent illegality, warranting interference.
The parties are restored to the position in which they were on the pronouncement of the judgement of the Division Bench. The execution proceedings before the High Court for enforcing the arbitral award must be discontinued and the amounts deposited by the petitioner pursuant to the judgment of this Court shall be refunded.
The Curative petitions must be and are accordingly allowed.
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2024 (4) TMI 556
Dishonour of Cheque - issuance of statutory notice to proper person or not - acquittal of respondent No. 2 - ‘not giving findings by the trial court’ will affect the outcome of the case or not.
HELD THAT:- In this case, admittedly the cheques are issued on a Bank account maintained by the Company with the Federal Bank. It was not a Bank Account in the name of Respondent No. 2. He has signed as a Director of Respondent No. 1. The issue in Aneeta Hada’s case is slightly different. It is on the point of necessity of joining Company when the cheques are drawn on an account maintained by the Company. The Company has to be joined - In this case, Company is joined as an Accused along with the signatory who is its Director. The issue is different. The issue is about issuance of a notice to proper person. The proviso (b) contemplates issuance of a notice to a drawer. In this case, cheques are drawn by Respondent No. 2 as a Director of Respondent No. 1 and that too on an account standing in Bank’s record in the name of Respondent No. 1. It is not in dispute that notice is not issued to the Company and Respondent No. 2 as Director of Respondent No. 1.
There is a liability in between the complainant and Accused No. 1. But he has not issued the cheques in his personal capacity on an account maintained by him in his person but he has chosen to draw the cheques on a Bank account maintained by his Company. The complainant has failed to issue notice to Company and Respondent No. 1 as Director. The provisions of clause (b) of Section 138 are mandatory. When the consequences of a particular Act are deterrent, the provisions have to be followed and interpreted strictly.
The complainant has failed to adhere to the provisions of the proviso (b) of Section 138 of the NI Act. So even though I have given finding in favour of the complainant on the other aspect, the contention of learned Advocate Shri Khanchandani cannot be accepted. Respondent No. 2 is a Director in Respondent No. 1 Company but law recognizes both these entities as separate.
The judgment of acquittal need no interference - appeal dismissed.
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2024 (4) TMI 466
Sale of mortgaged (scheduled) properties which was to be conducted by the Authorized Officer (Respondent No.2) of the Respondent-Bank - default in repayment of loan by the Borrower - HELD THAT:- This Court has clearly held that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. It has been held that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. The Court clearly observed that, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. It has been held that, though the powers of the High Court under Article 226 of the Constitution are of widest amplitude, still the Courts cannot be oblivious of the rules of self-imposed restraint evolved by this Court.
In the present case, it can clearly be seen that though it was specifically contended on behalf of the appellant herein that the writ petition was not maintainable on account of availability of alternative remedy, the High Court has interfered with the writ petition only on the ground that the matter was pending for sometime before it and if the petition was not entertained, the Borrower would be left remediless - the High Court has failed to take into consideration the conduct of the Borrower. It is further to be noted that, though the High Court had been specifically informed that, on account of subsequent developments, that is confirmation of sale and registration thereof, the position had reached an irreversible stage, the High Court has failed to take into consideration those aspects of the matter.
The High Court ought to have taken into consideration that the confirmed auction sale could have been interfered with only when there was a fraud or collusion. The present case was not a case of fraud or collusion. The effect of the order of the High Court would be again reopening the issues which have achieved finality.
Thus, the High Court has grossly erred in entertaining and allowing the petition under Article 226 of the Constitution - impugned order set aside - appeal allowed.
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2024 (4) TMI 465
Time limitation - Refusal to condone the delay in challenging the Order passed by the Competent Authority and Administrator, SAFEM(FOP)A, 1976 and NDPS Act, 1985, New Delhi - HELD THAT:- A perusal of the judgments in CHHATTISGARH STATE ELECTRICITY BOARD VERSUS CENTRAL ELECTRICITY REGULATORY COMMISSION AND OTHERS [2010 (4) TMI 1031 - SUPREME COURT] and M/S. PATEL BROTHERS VERSUS STATE OF ASSAM AND OTHERS [2017 (1) TMI 330 - SUPREME COURT] show that if a special Act provides for a special period of limitation then Sections 4 to 28 of the Limitation Act cannot be made applicable and, therefore, there is no power in the Appellate Tribunal to condone the delay. In the facts of the present case, admittedly the last date for filing the appeal had expired on 04.08.2023 and the appeal was filed on 20.09.2023 and, therefore, the Appellate Tribunal Could not have condoned the delay between 04.08.2023 and 20.09.2023.
It is equally well settled that the High Courts while exercising jurisdiction under Article 226 of the Constitution of India cannot go beyond the framework of a statute.
This Court does not find any reason to interfere with the Order dated 21.11.2023 passed by the Appellate Tribunal refusing to entertain the appeal filed by the Petitioner herein beyond the prescribed period of limitation.
The writ petition is dismissed.
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2024 (4) TMI 425
Interpretation of a contract condition, which required the measurement of quantities used for payment for embankment construction with soil or with pond ash - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- This Court, in VOESTALPINE SCHIENEN GMBH VERSUS DELHI METRO RAIL CORPORATION LTD. [2017 (2) TMI 1239 - SUPREME COURT] commenting on the value of having expert personnel as arbitrators, emphasized that "technical aspects of the dispute are suitably resolved by utilising their expertise when they act as arbitrators."
The prevailing view about the standard of scrutiny- not judicial review, of an award, by persons of the disputants' choice being that of their decisions to stand- and not interfered with, [save a small area where it is established that such a view is premised on patent illegality or their interpretation of the facts or terms, perverse, as to qualify for interference, courts have to necessarily chose the path of least interference, except when absolutely necessary]. By training, inclination and experience, judges tend to adopt a corrective lens; usually, commended for appellate review. However, that lens is unavailable when exercising jurisdiction Under Section 34 of the Act. Courts cannot, through process of primary contract interpretation, thus, create pathways to the kind of review which is forbidden Under Section 34 - As long as the view adopted by the majority was plausible- and this Court finds no reason to hold otherwise (because concededly the work was completed and the finished embankment was made of composite, compacted matter, comprising both soil and fly ash), such a substitution was impermissible.
It is evident that a dissenting opinion cannot be treated as an award if the majority award is set aside. It might provide useful clues in case there is a procedural issue which becomes critical during the challenge hearings. This Court is of the opinion that there is another dimension to the matter. When a majority award is challenged by the aggrieved party, the focus of the court and the aggrieved party is to point out the errors or illegalities in the majority award. The minority award (or dissenting opinion, as the learned authors point out) only embodies the views of the arbitrator disagreeing with the majority. There is no occasion for anyone- such as the party aggrieved by the majority award, or, more crucially, the party who succeeds in the majority award, to challenge the soundness, plausibility, illegality or perversity in the approach or conclusions in the dissenting opinion - the so-called conversion of the dissenting opinion, into a tribunal's findings, [in the event a majority award is set aside] and elevation of that opinion as an award, would, with respect, be inappropriate and improper.
The awards, which were the subject matter of challenge, and to the extent they were set aside, are hereby upheld and restored. The direction in the awards, to the extent they required compounded monthly interest payments, are modified. Instead, the NHAI shall pay uniform interest on the amounts due, on the head concerned, i.e., construction of embankment, to the extent of 12% from the date of award to the date of payment, within eight weeks from today.
Appeal allowed.
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2024 (4) TMI 368
Dishonour of Cheque - seek production of documents in order to discover or to obtain proper proof of the relevant facts - Section 311 of the Cr. P.C. - HELD THAT:- The petitioner seeks to place on record the pleadings of the parties in the Petition filed by the respondents before this Court. The said petition had culminated in the judgment and Order dated 18.02.2019 of this Court. It is thereafter, that the Notice under Section 251 of the Cr. P.C. was framed against the respondents, on 08.04.2019. On 16.09.2019, the petitioner, by way of an application filed under Section 311 of the Cr. P.C., sought to bring on record the documents that are now being sought to be brought on record by way of the application in question. The said application was withdrawn by the petitioner on 23.10.2019. The petitioner has not sought to explain the reason for withdrawing the said application, nor submitted any change in circumstances that would justify a new application with the same prayer to be filed afresh.
The judgment of the High Court of Bombay in U.T. OF DADRA AND HAVELI AND ORS. VERSUS FATEHSINH MOHANSINH CHAUHAN [2006 (8) TMI 684 - SUPREME COURT] cannot come to the aid of the petitioner, as in the said case, the earlier application under Section 311 of the Cr. P.C. seeking recall of PW2 therein, had been filed by the complainant therein. However, the same was withdrawn by the complainant. Within four days thereof, the prosecution filed an application seeking recall of four witnesses, including PW2, contending that these witnesses had earlier deposed due to threats received by them from the accused. It was in those peculiar facts, that the High Court of Bombay upheld the Order of the learned Trial Court therein allowing the application of the prosecution.
The application in question in the present case has been, admittedly, filed at a belated stage. It appears to be an afterthought. It only makes vague averments, and is also bereft of any explanation with regard to such delay. The learned Trial Court has also correctly observed that the petitioner has failed to file such documents with the complaint(s) itself or at an earlier and appropriate stage, even after being in possession of the said documents. There is also no explanation in the application in question with regard to the withdrawal of the earlier application seeking similar relief.
The learned Trial Court has, therefore, rightly rejected the application in question by the Impugned Order and has also given detailed and cogent reasons while dealing with the same. Therefore, the Impugned Order does not warrant any interference by this Court.
There are no merit in the present petitions. The same are, accordingly, dismissed.
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2024 (4) TMI 366
Bills of Exchange - Discounting of bill or Document Collection Method - appellant would vehemently contend that the learned Trial Judge was not right in treating the transaction as a 'Bill Discounting Transaction' where the appellant had assured payment - HELD THAT:- Though appellant would contend that there was no underlying LC or BG or an OCC limit in favour of the first defendant to support these transactions, we are unable to accept his contention as the arrangement between the first and second defendants are exclusively within their knowledge and the presence or absence of LC or BG or an OCC limit will not affect the liability of the second defendant as against third parties more so when the Bank has chosen to issue a SFMS message confirming that the bill will be cleared on 22.08.2017. This is also confirmed by the e-mail dated 06.06.2017 wherein there is a clear and categorical undertaking by the appellant / Bank to pay the bill amount on the due date.
A similar question was considered by a Single Judge of this Court in REVATHI – C.P. EQUIPMENTS LTD. VS. SANGEETHA TUBEWELL CORPORATION, MADRAS [1988 (10) TMI 289 - MADRAS HIGH COURT] wherein the impact of Sections 32 and 37 of the Negotiable Instruments Act, 1881, was considered. This Court ultimately concluded that if the Bill of Exchange is accepted by a Bank that by itself confirmed a separate and independent contract.
Once the Bill of Exchange is accepted by the Bank, the Banker would be liable as an acceptor under Section 37 of the Act.
There are no reason to interfere with the judgment of the learned Single Judge and the appeal fails and the same is dismissed.
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2024 (4) TMI 332
Freezing of Bank Accounts - investigation under the FCRA - Seeking to continue utilising their accounts for payment of salary and institutional expenses - Section 37 of the Foreign Contribution (Regulation) Act 2010 - Contempt petition - HELD THAT:- The petitioner had taken the Court through various documents to show that actually there was no contempt and whatever amount had been withdrawn was within the permissible limits depending upon the expenses incurred in the previous years and the allegations of any withdrawal from the accounts for purposes other than the salary and institutional expenses, is not correct.
The petitions disposed off making the interim order dated 7th April, 2021 absolute, however, with a rider that the petitioners would not only maintain proper and complete statement of accounts but would also get the same audited by a Chartered Accountant and provide quarterly statements of the same to the Investigating Officer or to the Trial Court on regular basis. The pending proceedings before all other forums to continue in accordance with law where it would be open for all the parties concerned to raise all such contentions as may be available under law.
The contempt petition stand disposed of.
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2024 (4) TMI 218
Dishonor of Cheque - Ascertaining nature of transaction - whether a criminal proceeding can be initiated and an accused held guilty when there is already a civil court decree concerning the same transaction - criminal jurisdiction would be bound by the civil Court or not - HELD THAT:- This Court in Satish Chander Ahuja vs. Sneha Ahuja [2020 (10) TMI 1379 - SUPREME COURT] considered a numerous precedents, including Premshanker [2002 (9) TMI 849 - SUPREME COURT] and Vishnu Dutt Sharma [2009 (5) TMI 862 - SUPREME COURT], to opine that there is no embargo for a civil court to consider the evidence led in the criminal proceedings.
The position as per Premshanker is that sentence and damages would be excluded from the conflict of decisions in civil and criminal jurisdictions of the Courts. Therefore, in the present case, considering that the Court in criminal jurisdiction has imposed both sentence and damages, the ratio of the above-referred decision dictates that the Court in criminal jurisdiction would be bound by the civil Court having declared the cheque, the subject matter of dispute, to be only for the purposes of security.
The criminal proceedings resulting from the cheque being returned unrealised due to the closure of the account would be unsustainable in law and, therefore, are to be quashed and set aside. Resultantly, the damages as imposed by the Courts below must be returned to the appellant herein forthwith - Appeal allowed.
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2024 (4) TMI 217
Criminal Conspiracy - Challenge to impugned order primarily on grounds that the prosecution case is based on speculations and the trial court has failed to appreciate the prosecution story in right perspective - Existence of conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh as alleged by the prosecution or not - HELD THAT:- In the present case the complainant PW 1 brought one typed complaint in office of CBI which was stated to be not properly addressed. Thereafter another complaint Ex. PW 1/A was retyped in office of CBI and said complaint is basis of registration of present FIR. There is nothing on record which can suggest that the contents of previous complaint which was already typed in office of the complainant PW 1 were materially different from the complaint Ex. PW 1/A which was retyped in office of CBI - The trial court rightly held that there was nothing to prove that there was any material change in the retyped complaint except the proper address as clarified by the complainant PW 1 during his testimony and no importance can be given on aspect of change of complaint in the facts and circumstances. The trial court rightly observed that case law cited on behalf of the appellants as referred herein above can be distinguished under facts and circumstances of present case.
It is accepted legal proposition that delay in lodging FIR must be properly explained to rule out chance of manipulation and embellishments. In present case the appellants Arun Kumar Gurjar and Baljeet Singh were handling income tax assessment of firm of the complainant i.e. MPVC. The appellants Arun Kumar Gurjar and Baljeet Singh as per the complainant initially demanded bribe of Rs. 1.5 lacs in month of October, 2010 which was raised to Rs. 5 lacs in month of December, 2010 which the complainant was not able to pay and thereafter the complainant on 28.12.2010 lodged the complaint Ex. PW 1/A which was basis of registration of FIR. The prosecution under given facts and circumstances of case has properly explained delay in registration of FIR. There is no legal force in arguments advanced on behalf of appellants Arun Kumar Gurjar and Baljeet Singh that there was unexplained delay in registration of FIR.
The appellant Baljeet Singh was assisting the appellant Arun Kumar Gurjar in the income tax assessment case of MPVC and was writing the order sheets. The trial court further observed that the appellant as per testimony of the complainant PW 1, the appellant Baljeet Singh was continuously in the touch in respect of demand of bribe. The trial court held that in ordinary course of events, it is hard to believe that the complainant PW 1 will go to the extent of lodging false case against the appellant Baljeet Singh on account of minor argument much prior to present case - in consideration of the trial court plea of false implication of the appellants Arun Kumar Gurjar and Baljeet Singh by the complainant PW 1 did not inspire any confidence and there is no convincing material on record to accept the plea of false implication. The trial court as such considered plea of false implication of the appellants Arun Kumar Gurjar and Baljeet Singh by the complainant PW 1 due to reasons as mentioned hereinabove in detail and in right perspective. The plea of false implication is without any justification and there is no force in arguments advanced by the learned Senior Counsels for the appellant Arun Kumar Gurjar and the Baljeet Singh that they were falsely implicated at instance of the complainant.
Existence of conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh as alleged by the prosecution - HELD THAT:- The inference of conspiracy between the appellants Arun Kumar Gurjar and the Baljeet Singh cannot be based on the shaky ground that the appellant Baljeet Singh met the complainant PW 1 in the room no. 207 which belonged to the appellant Arun Kumar Gurjar. The charge of conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent and acceptable evidence and has to be proved beyond reasonable doubt which it has not been.
It is accepted legal proposition that proof of demand and acceptance of the gratification is a sine qua non to constitute offence punishable under section 7 of the PC Act and presumption under section 20 of the PC Act can be invoked only on proof of demand of gratification by the accused and the acceptance thereof. The offence under Section 7 cannot be established unless demand and acceptance are established. It is also accepted legal proposition that mere acceptance of any illegal gratification or recovery thereof in the absence of proof of demand would not be sufficient to bring home the charge under Sections 7 of the PC Act.
The prosecution has failed to prove the acceptance of the tainted money by the appellant/Arun Kumar Gurjar and substantial doubts are appearing from the evidence led by the prosecution as to the guilt of the appellant Baljeet Singh - The impugned judgment and impugned order passed by the trial court are set aside and appellants are acquitted for the offence for which they were charged. If the appellants Arun Kumar Gurjar and Baljeet Singh have deposited any fine in terms of impugned order, they are entitled for refund of fine.
Accordingly, the appeals are allowed.
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2024 (4) TMI 164
Conscious possession of contraband item - poppy seeds - facts not put to the appellant during his examination - Section 313 of Cr.P.C. - violation of principles of natural justice - HELD THAT:- The circumstance against the appellant that he visited the railway station and enquired with the station supervisor about the contraband parcels has not been put to the appellant during his examination under Section 313 of Cr.P.C - Even the alleged circumstance that the railway receipt was in the appellant’s name has not been put to him in his statement under Section 313 of Cr.P.C.
The circumstances on which the prosecution relied upon against the appellant were not put to him in his examination under Section 313 of Cr.P.C. Even the question No. 15 does not incorporate any specific circumstance against the accused - the circumstances alleged against the appellant will have to be kept out of consideration. There is no other material on record to connect the appellant with the offence. The incident is of May, 2001, and therefore, it will be unjust to subject the appellant to further examination under Section 313 of Cr.P.C. at this stage, nearly twenty-two and half years from the date of the alleged recovery of the contraband. As the only material circumstances pleaded by the prosecution against the appellant were not put to him, a serious prejudice has been caused to the appellant’s defence.
The appellant has undergone incarceration of five and a half years. If, after the lapse of more than twenty-two years, he is again subjected to examination under Section 313 of Cr.P.C., it will cause prejudice to him. Therefore, the failure to put two relevant circumstances to the appellant in his examination under Section 313 Cr.P.C. will be fatal to the prosecution case. Hence, on this ground, the appellant’s conviction cannot be sustained.
The impugned judgments of the Trial Court and High Court are set aside only insofar as the present appellant is concerned - Appeal allowed.
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