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Indian Laws - Case Laws
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2024 (2) TMI 1244 - BOMBAY HIGH COURT
Dishonour of Cheque - Rule of evidence - acquittal of accused - Proof of liability - service of demand notice - complainant company has proved their representative C.W. No. 1 was authorised by them to give evidence before the court or not - trial court has committed wrong in discarding the oral and documentary evidence or not - HELD THAT:- It is a rule of evidence that a document has to be proved by producing the original that is primary evidence. It is also true that a document can be proved by way of secondary evidence. There are rules for producing a secondary evidence. It is laid down in Section 65 of the Indian Evidence Act. If the conditions therein are fulfilled the party can rely upon secondary evidence. So can it be said that the complainant was justified in relying upon certified true copy of board resolution instead of producing the original minutes book?
When the complainant has averred in the affidavit about production of the original and prayed for return of document, I think the complainant has fulfilled its responsibilities of proving the same - it was necessary for the accused at least to point out during the cross-examination that their originals are not produced. He need not call upon the complainant’s witness to produce their original, he could have certainly asked the complainant’s witness that the original minutes book is not produced. This was not put during the cross-examination. So that was the best opportunity for the accused to point out that lacuna. In fact, he allowed the complainant to go on with the case on the basis of the line of cross-examination he has adopted.
Ultimately, the trial is conducted on the basis of what case you are putting. When it comes to the accused it is by way of cross-examination. When these questions were not put to complainant at a subsequent stage, you cannot put him to surprise by raising that plea subsequently at the time or arguments. This objection is not of such a kind which goes to the root of the matter. This objection is about mode of proof of the document. By way of his conduct, the Respondent – Accused was not justified in raising this plea at subsequent stage.
Certainly, the findings can be considered as perverse. Because the trial court has unnecessarily observed about non-production of the original minutes book while writing the judgment. The observation is erroneous and unwarranted in the set of facts and circumstances mentioned above. When the witness has produced the original at some point of time, it was not objected throughout the trial, then the learned trial judge was wrong in discarding the true copy of the resolution simply for the reason that original minutes book is not produced. This is hyper-technical view and needs to be corrected.
Thus, it is held that the complainant has proved that the Respondent – Accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act. Hence, judgment of acquittal needs to be set aside and Respondent – Accused needs to be convicted for offence under Section 138 of the Negotiable Instruments Act - Respondent – Accused is sentenced to pay a fine of Rs. 1,00,00,000/-.
Appeal allowed.
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2024 (2) TMI 1184 - SUPREME COURT
Exemption from payment of property tax under the provisions of the UP Municipal Corporation Adhiniyam, 1959 - Whether statutory vesting of property termed as enemy property under the provisions of the Enemy Property Act, 1968 amounts to expropriation which leads to the change of its status inasmuch as its ownership is transferred to the Union of India?
HELD THAT:- Following conclusion have been arrived at:
1) That the Custodian for Enemy Property in India, in whom the enemy properties vest including the subject property, does not acquire ownership of the said properties. The enemy properties vest in the Custodian as a trustee only for the management and administration of such properties.
2) That the Central Government may, on a reference or complaint or on its own motion initiate a process of divestment of enemy property vested in the Custodian to the owner thereof or to such other person vide Rule 15 of the Rules. Hence, the vesting of the enemy property in the Custodian is only as a temporary measure and he acts as a trustee of the said properties.
3) That in view of the above conclusion, Union of India cannot assume ownership of the enemy properties once the said property is vested in the Custodian. This is because, there is no transfer of ownership from the owner of the enemy property to the Custodian and consequently, there is no ownership rights transferred to the Union of India. Therefore, the enemy properties which vest in the Custodian are not Union properties.
4) As the enemy properties are not Union properties, clause (1) of Article 285 does not apply to enemy properties. Clause (2) of Article 285 is an exception to clause (1) and would apply only if the enemy properties are Union properties and not otherwise.
5) In view of the above, the High Court was not right in holding that the respondent as occupier of the subject property, is not liable to pay any property tax or other local taxes to the appellant. In the result, the impugned order of the High Court dated 29.03.2017 passed in Misc. Bench No.2317 of 2012 is liable to be set aside and is accordingly set aside.
6) Consequently, any demand for payment of taxes under the Act of 1959 made and thereby paid by the respondent to the appellant-authority shall not be refunded. However, if no demand notices have been issued till date, the same shall not be issued but from the current fiscal year onwards (2024-2025), the appellant shall be entitled to levy and collect the property tax as well as water tax and sewerage charges and any other local taxes in accordance with law.
Appeal allowed.
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2024 (2) TMI 1154 - SUPREME COURT
Right to Terminate Agreement - delay in the delivery of possession of the apartment - The jurisdiction and powers of the National Consumer Disputes Redressal Commission (NCDRC) - Scope and interpretation of the terms of the Contract - Purchase of 4BHK apartment, on the sixth floor of the proposed building - Seeking unconditional Refund of amount paid with interest - HELD THAT:- The ‘date of offer of possession’, under Clause 1.14, linked with issuance of the ‘Occupation Certificate’ was distinct and separate from the ‘date of delivery of possession for fit outs’ and Clause 11.3 unequivocally provided the consequences in the event of delay in that regard. The right of election given thereunder to the appellants to either continue or to terminate the Agreement within ninety days from the expiry of the grace period was absolute and it was not open to the NCDRC to apply its own standards and conclude that, though there was delay in handing over possession of the apartment, such delay was not unreasonable enough to warrant cancellation of the Agreement. It was not for the NCDRC to rewrite the terms and conditions of the contract between the parties and apply its own subjective criteria to determine the course of action to be adopted by either of them.
The fact that the appellants were anxious to avoid the additional tax liability, owing to the introduction of the Goods and Service Tax regime, cannot be held against them or be imputed to them as an underhand motive for backing out of the Agreement. Avoidance of tax is neither illegal nor equivalent to tax evasion and, therefore, the urgency shown by the appellants in trying to complete the process quickly so as to avoid an additional tax burden was natural. Further, it cannot be presumed that the appellants, who were willing to spend over 7.5 ₹ Crore for the apartment, would back out at the eleventh hour only because the tax component was increasing by ₹40 lakh or so.
There are no hesitation in holding that the NCDRC overstepped its power and jurisdiction in ignoring the binding covenants in the Agreement and in introducing its own logic and rationale to decide as to what the future course of action of the parties and more particularly, the appellants, should be - as it is informed that the appellants did not choose to act upon the belated offer of the respondent-company, in its letter dated 29.11.2017, and are still intent on terminating the Agreement as per Clause 11.3 of the Agreement, we set aside the order dated 09.11.2022 passed by the NCDRC and allow Consumer Complaint No. 35 of 2018, directing the respondent-company to refund the deposited amount of ₹2,25,31,148/- in twelve equal monthly installments, through post-dated cheques, with simple interest thereon @ 12% p.a., from the date of receipt of the said amount or parts thereof till actual repayment. The first such installment shall be payable on the 5th of April, 2024, and the succeeding installments shall be payable on the fifth of each calendar month thereafter, till fully paid.
Appeal allowed.
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2024 (2) TMI 1153 - SUPREME COURT
Contempt application preferred by the appellant alleging non-compliance of order passed by the learned Single Judge of the High Court - entitlement to refund of the excess payment made by the petitioner over and above the notified price - requirement of furnishing all documents relating to refund of the excess amount - HELD THAT:- Suffice it to say that the claim of the appellant for refund pertaining to the third period, i.e. 1st January, 2007 till March, 2008 stands concluded with the rejection of SLP(Civil) No. 21019 of 2010 vide order dated 9th September, 2010 passed by this Court. Admittedly, the appellant has not been refunded the amount for the period running from 1st January, 2007 till March, 2008 and, therefore, the learned Single Judge was not justified in discharging the respondents in the contempt case without ensuring payment of the refund amount with interest to the appellant herein.
Regarding the issue of interest on the refund for the period running from 1st January, 2005 to 11th December, 2005, the learned Single Judge rejected the claim of the appellant herein holding the said demand to be exaggerated. While drawing such inference, the learned Single Judge completely ignored the judgment rendered by this Court in Ashoka Smokeless Coal Industries(P) Ltd. and Ors. [2005 (12) TMI 610 - SUPREME COURT] wherein a pertinent direction had been given to make the refund of the excess amount with interest @ 12% per annum. Admittedly, as per the affidavit filed by the respondents, the interest which has been applied on the refund amount for the period between 1st January, 2005 to 11th December, 2005 is at the bank rate i.e. 3.5% per annum. Evidently thus, the respondents have failed to faithfully comply with the orders passed by the Jharkhand High Court as well as this Court.
Thus, it is hereby directed that the appellant shall be entitled to interest @ 12% per annum on the refund amount for the period running from 1st January, 2005 to 11th December, 2005. The interest @ 3.5% per annum, already paid, shall be deducted from the differential amount. The appellant shall also be entitled to receive refund of the excess amount paid for the period between 1st January, 2007 till March, 2008 with interest @ 12% per annum in the same terms as directed by this Court vide order dated 9th September, 2010. The amount as directed above shall be paid to the appellant within a period of two months from today failing which, the officers concerned shall be made personally liable to pay the interest amount to the appellant.
Appeal disposed off.
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2024 (2) TMI 1152 - SUPREME COURT
Access to Technology in Courts - Hearings through hybrid mode or video conferencing - Lack of Uniformity - Infrastructure and Connectivity - Requirement to file affidavit detailing video conferencing hearings taken place in the last three months - whether any courts are declining to permit video conferencing hearings - request to assist the court with data on hybrid hearings in the tribunals under various ministries of the Union Government on the next date of hearing - HELD THAT:- During the course of the hearing, it has emerged that whereas several High Courts do have facilities for video conferencing, very few High Courts are operating through the hybrid mode of hearing. The infrastructure which is required for conducting hybrid hearings may be of a different order as compared to the infrastructure for video conferencing.
Bearing in mind the above situation as it has emerged across the country in the High Courts, Mr Gaurav Agrawal and Mr K Parameshwar, counsel, nominated as amici curiae. The amici curiae are requested to collate all the information which has been provided in the affidavits which have been filed before this Court in a tabulated chart so that further effective orders can be passed by this Court. The amici curiae may also distribute the work in connection with the High Courts between them and individually contact the Registrars General/Registrars (IT) of the High Courts so that necessary information can be placed before this Court in that regard. The amici curiae shall also place before this Court the steps which have been taken by all the High Courts to facilitate e-filing.
The use of technology by the Bar and the Bench is no longer an option but a necessity. Members of the Bench, the Bar and the litigants must aid each other to create a technologically adept and friendly environment. The directions given below must be implemented by all concerned stakeholders in letter and in spirit.
(i) After a lapse of two weeks from the date of this order, no High Court shall deny access to video conferencing facilities or hearing through the hybrid mode to any member of the Bar or litigant desirous of availing of such a facility;
(ii) All State Governments shall provide necessary funds to the High Courts to put into place the facilities requisite for that purpose within the time frame indicated above;
(iii) The High Courts shall ensure that adequate internet facilities, including Wi-Fi facilities, with sufficient bandwidth are made available free of charge to all advocates and litigants appearing before the High Courts within the precincts of the High Court complex;
(iv) The links available for accessing video conferencing/hybrid hearings shall be made available in the daily cause-list of each court and there shall be no requirement of making prior applications. No High Court shall impose an age requirement or any other arbitrary criteria for availing of virtual/hybrid hearings;
(v) All the High Courts shall put into place an SOP within a period of four weeks for availing of access to hybrid/video conference hearings. In order to effectuate this, Justice Rajiv Shakdher, Hon’ble Judge of the High Court of Delhi is requested to prepare a model SOP, in conjunction with Mr Gaurav Agrawal and Mr K Parameshwar, based on the SOP which has been prepared by the e-Committee. Once the SOP is prepared, it shall be placed on the record of these proceedings and be circulated in advance to all the High Courts so that a uniform SOP is adopted across all the High Courts for facilitating video conference/hybrid hearings;
(vi) All the High Courts shall, on or before the next date of listing, place on the record the following details:
(a) The number of video conferencing licences which have been obtained by the High Court and the nature of the hybrid infrastructure;
(b) A court-wise tabulation of the number of video conference/hybrid hearings which have taken place since 1 April 2023; and
(c) The steps which have been taken to ensure that Wi-Fi/internet facilities are made available within every High Court to members of the Bar and litigants appearing in person in compliance with the above directions.
(vii) The Union Ministry of Electronics & Information Technology is directed to coordinate with the Department of Justice to ensure that adequate bandwidth and internet connectivity is provided to all the courts in the North-East and in Uttarakhand, Himachal Pradesh and Jammu and Kashmir so as to facilitate access to online hearings;
(viii) All High Courts shall ensure that adequate training facilities are made available to the members of the Bar and Bench so as to enable all practising advocates and Judges of each High Court to be conversant with the use of technology. Such training facilities shall be set up by all the High Courts under intimation to this Court within a period of two weeks from the date of this order; and
(ix) The Union of India shall ensure that on or before 15 November 2023, all tribunals are provided with requisite infrastructure for hybrid hearings. All Tribunals shall ensure the commencement of hybrid hearings no later than 15 November 2023. The directions governing the High Courts shall also apply to the Tribunals functioning under all the Ministries of the Union Government including CESTAT, ITAT, NCLAT, NCLT, AFT, NCDRC, NGT, SAT, CAT, DRATs and DRTs.
List the proceedings on 6 November 2023.
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2024 (2) TMI 1151 - DELHI HIGH COURT
Maintainability of petition - availing the remedy of filing the revision petition - Dishonour of Cheque - exercise of discretion rationally, by the Trial Court interim compensation - HELD THAT:- Petitioner cannot be permitted to seek a second revision in the garb of the present petition under Section 482 Cr.P.C. In Rajan Kumar Manchanda v. State of Karnataka, [1987 (11) TMI 404 - SUPREME COURT], the Supreme Court observed that the bar under Section 397(3) Cr.P.C. cannot be overcome merely by stating that petition was filed invoking inherent powers of the High Court under Section 482 Cr.P.C. In Surender Kumar Jain v. State & Anr., [2012 (1) TMI 352 - DELHI HIGH COURT] this Court observed that the High Court does enjoy inherent powers under Section 482 Cr.P.C. but that power has to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court.
The power under Section 482 Cr.P.C. has to be sparingly exercised and should not be used as a substitute for a second revision albeit there can be no doubt that when there is a serious miscarriage of justice or abuse of process of the Court or where mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction has not been exercised correctly by the Revisional Court, it can interfere as held by the Supreme Court in Kailash Verma [2005 (1) TMI 406 - SUPREME COURT]. Thus, the question is whether Petitioner has made out an extraordinary case warranting interference by this Court exercising jurisdiction under Section 482 Cr.P.C.
Whether the Trial Court has exercised its discretion rationally, keeping into account the facts of the case and the conduct of the Petitioner and if the exercise of discretion warrants any interference by this Court while exercising inherent powers under Section 482 Cr.P.C.? - HELD THAT:- Impugned order dated 18.08.2023 shows that the learned Magistrate has passed a reasoned order supporting the award of compensation in favour of the Respondent. Trial Court observed that Petitioner has admitted her signatures on the cheque in question as well as the factum of issuance of the cheque from her account, leading to the mandatory presumptions under Sections 118A and 139 of the NI Act against her to the effect that the cheque was drawn by her for a consideration and the Respondent Company had received the same in discharge of a debt/liability, from the Petitioner. Trial Court rightly observed that the only factor which could then have come to the rescue of the Petitioner while deciding the application was that Petitioner was not responsible for dragging or delaying the proceedings.
Power under Section 482 Cr.P.C. has to be exercised sparingly and not as a substitute for second revision. High Court can entertain a petition under Section 482 Cr.P.C. where there is serious miscarriage of justice and abuse of process of Court or an error of jurisdiction or violation of mandatory provisions of law, however, this provision cannot be invoked calling upon the High Court to substitute its findings for that of the Trial Court or the Revisional Court, particularly, on findings of fact rendered therein or to interfere where discretion has been exercised by the Trial Court on sound reasoning - It is equally settled if the impugned orders record a finding of fact as concurrent findings, based on detailed appreciation of material before it, the High Court should be extremely slow in interfering. The object of Section 482 Cr.P.C. is to set right a patent defect or an error of jurisdiction of law which has to be a well-founded error in the given case.
This Court sees no reason to exercise jurisdiction under Section 482 Cr.P.C. in light of the findings of the Trial Court and a concurrent finding by the Revisional Court and the petition is dismissed being devoid of merits - petition dismissed.
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2024 (2) TMI 1130 - SUPREME COURT
Agony of trial - Forgery of the passport application - whether a prima facie case, to subject the Appellants to the agony of trial, has been made out - Whether the actions of the Appellants prima facie constitute the offence of cheating under Section 420 IPC? - Whether there has been a prima facie case made out for forgery under Sections 468 and 471 IPC? - Whether there has been a violation of Section 12(b) of the Passports Act, 1967?
The offence of cheating under Section 420 IPC - HELD THAT:- The background of this case and the chronology of events squarely indicate that it is the touchstone of a marital dispute. The insinuations made by Respondent No. 2, even if they possess an iota of truth, have miserably failed to prima facie establish the elements of ‘cheating’ and thus, the accusation made against the Appellants under Section 420 IPC must fall flat.
The offence of forgery under Sections 468 and 471 IPC - HELD THAT:- The offences of ‘forgery’ and ‘cheating’ intersect and converge, as the act of forgery is committed with the intent to deceive or cheat an individual. Having extensively addressed the aspect of dishonest intent in the context of ‘cheating’ under Section 420 IPC, it stands established that no dishonest intent can be made out against the Appellants. Our focus therefore will now be confined, for the sake of brevity, to the first element, i.e., the preparation of a false document. The determination of whether the Appellants prepared a false document, by forging Respondent No. 2’s signature, however, cannot be even prima facie ascertained at this juncture - It is also significant to highlight that the proceedings as against the concerned Passport Officer, who was implicated as Accused No. 4, already stand quashed. In such like situation and coupled with the nature of allegations, it cannot be appreciated as to why the Appellants be subjected to the ordeal of trial.
Questions overlooked by the lower courts - HELD THAT:- The Trial Magistrate should have approached the complaint with due care and circumspection, recognising that the allegations do not pertain to offences against property or documents related to property marks. Instead of wielding judicial authority against the Appellants, the Trial Magistrate should have exercised prudence, making at least a cursory effort to discern the actual ‘victim’ or ‘victimiser’. The failure to do so is both fallible and atrocious - The sum and substance of the above discussion is that the elementary ingredients of ‘cheating’ and ‘forgery’ are conspicuously missing. Thus, the continuation of the criminal proceedings against the Appellants is nothing but an abuse of the process of law.
In the context of Section 12(b) of the Passports Act, 1967 - HELD THAT:- In the present case, it is crucial to consider that the State FSL report explicitly stated that the alleged forgery of Respondent No. 2’s signatures on the passport application was inconclusive. Moreover, the cognizance of such like offence can be taken only at the instance of the Prescribed Authority. No complaint to that effect has been disclosed against the Appellants. This Court, therefore, will exercise caution before invoking such severe offences and penalties solely on the basis of conjectures and surmises.
The conduct exhibited by Respondent No. 2 - HELD THAT:- The Appellants were unnecessarily implicated and dragged into criminal proceedings, thereby causing undue hardship to them. These instances shed light on Respondent No. 2’s conduct preceding the initiation of the present proceedings and provide insight into his motivations for instigating the same - It is undeniable that despite the evident discord between the Appellants and Respondent No. 2, resulting in numerous complaints and legal proceedings, the issue at hand has adversely impacted the rights and interests of the minor child. The right to travel abroad is a fundamental right of an individual, albeit not absolute, and subject to established legal procedures.
The impugned judgment of the High Court dated 18.02.2021, and that of the Trial Magistrate dated 15.03.2018, are hereby set aside - Appeal allowed.
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2024 (2) TMI 1075 - BOMBAY HIGH COURT
Dishonour of Cheque - offence under Section 138 of N.I. Act has been proved beyond all reasonable doubt or not - Rebuttal of presumptions - Whether this Court while sitting as a Revisional Court, in the absence of perversity, would upset the concurrent findings of facts? - HELD THAT:- It is well settled that while sitting in a revisional jurisdiction, this Court cannot re-analyze or re-interpret or re-appreciate the evidence on record. It is also to be kept in mind that the Revisional Court will not interfere, even if, a wrong order is passed by the Court having jurisdiction, in the absence of jurisdictional error, as held in the case of SOUTHERN SALES & SERVICES & ORS. VERSUS SAUERMILCH DESIGN & HANDELS GMBH [2008 (10) TMI 696 - SUPREME COURT].
Since the signature on both the cheques is admittedly of the Accused, the principles laid down by the Apex Court in the case of HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE [2001 (7) TMI 1172 - SUPREME COURT] shall come into effect, wherein it is held that the Court “shall presume” the liability of the drawer of the cheques for the amounts for which the cheques are drawn. It is now well settled that Section 139 of the N.I. Act introduces an exception to the general rule as to the burden of proof and shifts the onus on to the Accused. The presumption under Section 139 of the N.I. Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the Prosecution to prove the case against the Accused beyond reasonable doubt - The burden of proof was however on the person who wanted to rebut the presumption.
The presumption arrived in favour of the Applicant under Section 139 of the N.I. Act has not been rebutted successfully by the Applicant though he entered into the witness box and thus, the findings given by both the Courts below cannot be faulted with.
The Revision must fail and hence, the same stands rejected.
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2024 (2) TMI 1012 - SUPREME COURT
Condonation of delay by applying Section 5 of the Limitation Act - case of an appeal against acquittal - whether the period of filing an appeal against acquittal, has been prescribed under Section 378(5) of CrPC itself, where there is no provision for condonation of delay? - HELD THAT:- In the present case, there is no such exclusionary provision under Section 378 of CrPC, or at any other place in the Code. The benefit of Section 5 read with Sections 2 and 3 of the Limitation Act, 1963 can therefore be availed in an appeal against acquittal. There is no force in the contentions raised by the appellants as regards the non-application of Section 5 of the Limitation Act in the present case and the appeal is therefore dismissed.
Neither Hukumdev Narain Yadav [1973 (12) TMI 92 - SUPREME COURT] or Gopal Sardar [2004 (3) TMI 743 - SUPREME COURT] would help the case of the appellant as both these cases deal with special laws which prescribed a period of limitation and the expression of the language contained in the law is very clear that under no circumstances can such a limitation be condoned. The relevant provisions have already been discussed earlier.
Appeal dismissed.
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2024 (2) TMI 1011 - JHARKHAND HIGH COURT
Dishonour of Cheque - legally enforceable debt or not - no evidence to that effect has been adduced on behalf of the petitioner-convict to rebut the presumption under Sections 118 and 139 of the N.I. Act - HELD THAT:- In the case in hand the petitioner/ convict/ accused has admitted his signature on the cheque and stated that the same were taken from him by the complainant in good faith being on friendly relation. The complainant has stated that both these cheques were issued by the accused to discharge the liability of the payment of Rs. 20 lakhs, which was paid by him to purchase the land; but the same land was sold by the accused to any other person though there is no written document to this effect only the oral evidence has been adduced by the complainant examining himself as C.W.-1. This oral evidence is not rebutted by the petitioner/ accused/ convict by adducing evidence even to rebut the presumption under Section 118 and 139 of the N.I. Act. Though the petitioner/ accused/ convict, in cross-examination of complainant C.W.-1, this question was put up that no income tax return was filed by the complainant; but the same fact is not rebutted by the accused/ convict/ petitioner by adducing evidence in rebuttal.
The Hon’ble Apex Court in the case of Oriental Bank of Commerce Vs. Prabodh Kumar Tewari [2022 (9) TMI 264 - SUPREME COURT] held that drawer of a cheque is liable even if details of the cheque was filled by some other person in writing; the experts opinion cannot rebut the presumption under Section 139 of the N.I. Act.
The Hon’ble Apex Court in the case of Yogesh Jain Vs. Sumesh Chandra [2022 (10) TMI 1198 - SUPREME COURT] held that once the cheque is issued and upon getting dishonored statutory notice is issued, it is accused to dislodge the legal presumption available under Section 118 and 139 of the N.I. Act.
In order to rebut both these presumptions on behalf of the convict petitioner, no oral or documentary evidence was adduced. The only defence, which has been taken by the petitioner-convict during trial was that the cheques were issued in good faith because of friendship of him with the complainant. This suggestion was also given that in regard to sale of the land, no document was executed and there was no alleged liability for issuance of cheques. To this effect, on behalf of the petitioner-convict, no evidence has been adduced to rebut both the presumption sunder Sections 118 and 139 of the N.I. Act and also the evidence adduced by the complainant oral and documentary even on the touchstone of preponderance of probabilities - In view of the complaint case, the same is found to be proved beyond reasonable doubt. Accordingly, this point of determination is decided in favour of the opposite party No. 2 and against the petitioner/ convict.
The impugned order passed by the learned trial Court, which was affirmed by the learned Appellate Court needs no interference and this Criminal Revision deserves to be dismissed - revision dismissed.
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2024 (2) TMI 1010 - JHARKHAND HIGH COURT
Dishonour of Cheque - applicability of principles of discharge - amount paid for transaction for installing a plant on Chinese technology - cheque was bounced for insufficient fund and stop payment - such technology from China existing (for which cheque was issued) on the date of encashment of cheque or not - it is submitted that the entire case of prosecution is devoid of criminal mens rea and the instant prosecution is merely a misuse of the process of law - HELD THAT:- It is an admitted position that the petitioner and the informant have entered into transaction for installing a plant on Chinese technology. It appears that after taking cheque of Rs. 51 Lakhs, the petitioner was traceless for about 3 months and thereafter he was traced and he has issued a cheque of Rs. 51 Lakhs in favour of opposite party no. 2, which was instructed as stop payment by the petitioner. In spite of issuance of cheque, it was not encashed, opposite party no. 2 was required to take remedy under the Negotiable Instruments Act. It appears that statutory notice etc. was not issued and the present FIR was registered, which clearly suggests that Section 138 of the Negotiable Instruments Act is not made out.
There is no doubt that the document of unimpeachable character can be considered, however, if such dispute is there, that cannot be appreciated under Section 482 Cr.P.C. A reference may be made to the judgment passed by the Hon'ble Supreme Court in the case of SURYALAKSHMI COTTON MILLS LTD. VERSUS RAJVIR INDUSTRIES LTD. & ORS. [2008 (1) TMI 865 - SUPREME COURT], where it was held that The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.
There is no doubt that mere breach of contract and cheating would depend upon the intention of the accused at the time of alleged inducement, as has been held by the Hon'ble Supreme Court in the case of INTERNATIONAL ADVANCED RESEARCH CENTRE FOR POWDER METALLURGY AND NEW MATERIALS (ARCI) & ORS. VERSUS NIMRA CERGLASS TECHNICS (P) LTD. & ANR. [2016 (3) TMI 32 - SUPREME COURT] as relied by the learned counsel for the petitioner, however, in the case in hand, it has been alleged that the said technology was never introduced by China and on the said ground, the amount was taken. Thus, that dispute is distinguishable in the facts and circumstances of the present case.
Further it is well settled that if injustice is not done, in the garb of Section 482 Cr.P.C., second revision is not maintainable after dismissal of the revision petition.
The learned Court will proceed under Sections 406 and 420 of the Indian Penal Code, in accordance with law - Petition allowed in part.
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2024 (2) TMI 1009 - GAUHATI HIGH COURT
Appointment of Arbitral Tribunal to adjudicate upon the disputes between the parties - whether a petition under Section 11 (6) of the Act would be maintainable? - HELD THAT:- Under Section 21 of the Act, the expression used is “commencement of the proceeding”. The argument advanced on behalf of the petitioner with regard to the aforesaid provision of the Act is that on receipt of the claim by the respondent, the arbitral proceeding is deemed to be commenced. However, such submission is not acceptable in the facts and circumstances of the instant case. Admittedly, it is the provision of the Contract that in case the claim exceeds Rs. 5 crores, the Tribunal would be constituted by three members and unless and until the Arbitral Tribunal is constituted, the question of commencement will not arise at all.
With regard to application of Section 11 (6) of the Act in making a challenge of the present nature, the learned counsel has relied upon a decision of the Hon’ble Supreme Court in the case of HUAWEI TECHNOLOGIES CO. LTD. VERSUS STERLITE TECHNOLOGIES LTD. [2015 (9) TMI 866 - SUPREME COURT]. However, on a reading of the said decision, this Court is of the opinion that the same would not have any application in the present case. Rather, on reading of the contents of paragraph 8, a different interpretation would be available which will not come to the aid of the petitioner.
This Court is of the firm opinion that a challenge of this nature would not be maintainable under the provision of Section 11 (6) of the Act and unless a petition is presented before the appropriate forum under the appropriate provisions of law, such challenge cannot be maintained - Petition dismissed.
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2024 (2) TMI 948 - DELHI HIGH COURT
Validity of Look Out Circular dated 22.01.2020 opened against the Petitioner - evasion in disclosure of a large amount of undisclosed foreign assets/income to the tune of Rs. 1400 crores in offshore jurisdictions - use of NRI status in creating a structure of institutions/trusts in offshore jurisdictions for the benefit of the larger family and his sister - diversion of unaccounted assets/income with the purpose of circumventing the jurisdiction of Indian revenue authorities - HELD THAT:- Initially LOCs were issued against such individuals who were suspected of committing serious crimes and were indulged in anti national activities, terrorist activities, etc. However, after amendment, LOCs are now also opened at the instance of investigating agencies and banks against persons who have committed economic offences which involve offences under the Black Money Act and Prevention of Money Laundering Act including the act of siphoning off and misappropriation of funds which have been advanced to them by various banks.
The scope and ambit of the term “economic interests of India” has been a subject matter of a number of judgments and most of the Courts, in unison, have held that the magnitude of the offence must be such that it has affected the economic interest of the country and larger public interest is involved.
The last summon was issued to the Petitioner in March 2022, i.e. about two years back, and the Petitioner has not been summoned by the authorities since then. An LOC cannot be permitted to continue for such a long period without there being any cogent and valid reason. The Petitioner has not been called for investigation since March 2022 and the counter affidavit filed by the Respondents does not indicate as to how the Petitioner has not cooperated with the investigation. In fact, material on record discloses that the petitioner has complied with the summons and has cooperated with the ongoing investigations against him by the IT Department.
Right to travel abroad has been held to be a fundamental right under Article 21 of the Constitution of India which cannot be taken away in an arbitrary and illegal manner.
In view of the fact that LOC against Ms. Jyotsana Suri has been quashed and also in view of the fact that the Petitioner has not been called for investigation by the Investigating Agency for the past two years and in the absence of any material which indicates that the Petitioner is likely to be called for investigation in the near future, this Court is inclined to quash the LOC opened against the Petitioner. Mere fact that information sought through the Foreign Tax and Tax Research from other jurisdictions such as the UAE is still awaited does not persuade this Court to keep the LOC against the Petitioner pending to curtail his fundamental rights.
Considering the fact that the Petitioner is an NRI citizen who stays in Dubai and in order to ensure Petitioner’s presence in India this Court is inclined to impose the conditions on the Petitioner before quashing the LOC - the LOC against the Petitioner is hereby quashed subject to conditions imposed - petition disposed off.
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2024 (2) TMI 947 - MADHYA PRADESH HIGH COURT
Rejection of technical bid submitted by petitioner - bid rejected only on the ground that the bidder has submitted unaudited balance sheet and profit & loss account for financial year 2017-18 - HELD THAT:- The undisputed fact is that the petitioner had participated in the NIT without any objection and only after his bid was declared disqualified, petitioner has filed this petition thereby directly / indirectly challenging the mandatory criteria of enclosing balance sheet and profit & loss account of last five completed financial years duly audited by the Chartered Accountant.
Whether petitioner after having failed in the NIT can challenge the conditions of NIT? - HELD THAT:- This Court is of considered opinion that by participating in NIT and having failed to succeed, petitioner cannot take a somersault by challenging the condition of NIT - Under these circumstances, it is held that the petitioner is estopped from challenging the conditions of NIT.
So far as the judgment relied upon by petitioner passed by Rajasthan High Court in the case of M/S RAM KHILADI GURJAR VERSUS RAJASTHAN STATE COOPERATIVE MARKETING FEDERATION LTD. (RAJFED) , REGISTRAR COOPERATIVE SOCIETIES, COOPERATIVE DEPARTMENT, SAHKAR BHAWAN, JAIPUR. [2018 (11) TMI 1954 - RAJASTHAN HIGH COURT] is concerned, this Court with all humility at its command is not inclined to rely on the same - In the case of M/s Ram Khiladi Gurjar, doctrine of estoppel, jurisdiction of Court under Article 226 of Constitution of India in respect of contractual matter and the jurisdiction of this Court to modify the condition of NIT has not been taken into consideration at all.
Whether the respondent/ Department is entitled to incorporate the condition in NIT as per their requirement or not and what is the scope of interference under Article 226 of Constitution of India? - HELD THAT:- It is well established principle of law that a writ petition for enforcement of contract is not maintainable. The Supreme Court in the case of Surjeet Singh Sahni Vs. State of U.P. and Ors. [2022 (3) TMI 317 - SUPREME COURT] has held No writ under Article 226 of the Constitution of India shall be maintainable and/or entertainable for specific performance of the contract.
This Court is of considered opinion that disqualification of bid of the petitioner does not require any interference - Petition dismissed.
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2024 (2) TMI 868 - DELHI HIGH COURT
Dishonour of Cheque - cheque issued by the petitioner or not - Petitioner is an agent of the accused no. 1 firm - vicarious liability of the petitioner - HELD THAT:- A reading of the complaints would show that barring the assertion that the petitioner had acted as an agent of the accused no. 1, there is no other assertion that the petitioner, in any manner, was incharge of the firm of the accused no. 1 or had any say in its working. The cheques are not stated to be issued by the petitioner.
It is trite law that for a person to be subjected to criminal proceedings, specific averments have to be in a complaint. It is also imperative to establish that a person who is sought to be made criminally liable should, at the time of the commission of the offence, be in charge of and responsible for the conduct of the business of the company, to initiate proceedings under Section 141 of the Negotiable Instruments Act, 1881
The petitioner herein is averred to only be an agent of the accused no. 1 firm. There is not even an assertion in the complaint that the petitioner was in any manner in charge of or was responsible to the accused no. 2 for the conduct of its business - Applying the above test to the facts of the present case, therefore, the offence under Section 138 of the Act is not made out against the petitioner. The prejudice caused to the petitioner is evident from the fact that though the complaint has been filed in the year 2014 and was re-filed before the learned MM in 2017, the accused nos. 1 to 3 are yet to be served with the summons issued by the Court.
As far as the plea of the learned counsel for the respondent that the petitioner be allowed to be summoned by the respondent as a witness in the subject complaints, as the petitioner is now not an accused in the complaints, the respondent shall be at liberty to move an appropriate application, if so advised, to include the petitioner in the list of witnesses to be examined.
Petition allowed.
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2024 (2) TMI 812 - SUPREME COURT
Unlimited corporate funding to political parties - Infringement of principle of free and fair elections - violation of Article 14 of the Constitution - non-disclosure of information on voluntary contributions to political parties.
Challenging the constitutional validity of the Electoral Bond Scheme “Electoral Bond Scheme” or “Scheme” which introduced anonymous financial contributions to political parties -Challenge to the provisions of the Finance Act 2017 which, among other things, amended the provisions of the Reserve Bank of India Act 1934, Section 135 of the Finance Act 2017, the Representation of the People Act 1951, Section 137 of the Finance Act 2017, the Income Tax Act 1961, Section 11 of the Finance Act 2017, and the Companies Act 2013, Section 154 of the Finance Act 2017.
Whether unlimited corporate funding to political parties, as envisaged by the amendment to Section 182(1) of the Companies Act infringes the principle of free and fair elections and violates Article 14 of the Constitution?
Whether the non-disclosure of information on voluntary contributions to political parties under the Electoral Bond Scheme and the amendments to Section 29C of the RPA, Section 182(3) of the Companies Act and Section 13A(b) of the IT Act are violative of the right to information of citizens under Article 19(1)(a) of the Constitution?
HELD THAT:- It is held in the present case as follows:-
a. The Electoral Bond Scheme, the proviso to Section 29C(1) of the Representation of the People Act 1951 (as amended by Section 137 of Finance Act 2017), Section 182(3) of the Companies Act (as amended by Section 154 of the Finance Act 2017), and Section 13A(b) (as amended by Section 11 of Finance Act 2017) are violative of Article 19(1)(a) and unconstitutional; and
b. The deletion of the proviso to Section 182(1) of the Companies Act permitting unlimited corporate contributions to political parties is arbitrary and violative of Article 14.
The following directions are issued:
a. The issuing bank shall herewith stop the issuance of Electoral Bonds;
b. SBI shall submit details of the Electoral Bonds purchased since the interim order of this Court dated 12 April 2019 till date to the ECI. The details shall include the date of purchase of each Electoral Bond, the name of the purchaser of the bond and the denomination of the Electoral Bond purchased;
c. SBI shall submit the details of political parties which have received contributions through Electoral Bonds since the interim order of this Court dated 12 April 2019 till date to the ECI. SBI must disclose details of each Electoral Bond encashed by political parties which shall include the date of encashment and the denomination of the Electoral Bond;
d. SBI shall submit the above information to the ECI within three weeks from the date of this judgment, that is, by 6 March 2024;
e. The ECI shall publish the information shared by the SBI on its official website within one week of the receipt of the information, that is, by 13 March 2024; and
f. Electoral Bonds which are within the validity period of fifteen days but that which have not been encashed by the political party yet shall be returned by the political party or the purchaser depending on who is in possession of the bond to the issuing bank. The issuing bank, upon the return of the valid bond, shall refund the amount to the purchaser’s account.
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2024 (2) TMI 811 - BOMBAY HIGH COURT
Dishonour of Cheque - acquittal of accused - rebuttal of presumption - Whether Respondent No. 1 succeeded in rebutting presumption under Section 139 of Negotiable Act? - HELD THAT:- There is a clear statement by PW-1 and that too in the cross-examination that the amount of loan was disbursed thought the account of the Accused. He also denied the suggestion that he failed to produce sufficient documents to show the liability of the Accused. The cross-examination of this witness is basically on the aspect of instalments and the amount paid by the Accused in such instalments. The specific suggestion was put to this witness which he denied - There is no dispute raised by the Accused that such notice was never received by him. Besides, the notice is addressed to the registered address of the Accused. The mandate of Section 138 of the Negotiable Instruments Act is to send notice to the Accused on his registered address, which has been complied with by the Complainant. No defence has been raised about such notice. No reply was given by the Accused to such legal notice.
There is absolutely no defence raised by the Accused on receipt of legal notice issued by the Complainant. Thus once the signature on the cheque is admitted, the Court is duty bound to presume in favour of the Complainant that the cheque was issued for legally enforceable debt.
In the case of BIR SINGH VERSUS MUKESH KUMAR [2019 (2) TMI 547 - SUPREME COURT], the Apex Court considering the statutory presumption under Section 139 of the Negotiable Instruments Act and observed that on meaningful reading of the provision of the Negotiable Instruments Act, it makes amply clear that the person who signs the cheque and makes it over to the payee, remains liable himself unless he adduces evidence to rebut the presumption that the Cheque had been issued for payment of debt or in discharge of liability. It is immaterial that the cheque may have been held in by any person other then the drawer, if the cheque is duly signed by the Drawer. If the cheque is otherwise valid penal provision of the Section 138 would be attracted.
In the present matter the documentary evidence placed on record clearly proves that the Accused obtained loan of Rs. 6,00,000/- with an undertaking to repay it in 60 instalments together with an interest at the rate of 15% per annum - There is no other material to show that prior to the date Ninety-Eight. 30.10.2012 any repayment was made by the Accused. Thus the amount outstanding in the loan ledger account is much more than the one mentioned in the cheque - This documentary evidence is sufficient enough to strengthen the case of the Complainant. Such material cannot be disbelieved only because representative of the Society was unable to give the bifurcation of the amount or the fact that he paid some instalments prior to the date of the cheque. The learned Magistrate has completely ignored the fact that repayment was with 15% interest. Therefore, even if some amount was paid, the amount outstanding shown in the ledger account and that too maintained during their regular business activities could not have been disbelieved. Apart from some discrepancies found in the deposition of PW1, there is absolutely no material to show that the Accused succeeded in rebutting presumption under Section 139 of the Negotiable Instruments Act.
The Complainant established that the loan was sanctioned and availed by the Accused to the tune of Rs. 6,00,000/- (Rupees Six Lakhs only) and the amount mentioned in the cheque is certainly less than the outstanding amount shown in the ledger book. Thus, there was absolutely no material in favour of the Accused to claim the rebuttal evidence. The presumption stands in favour of the Complainant and accordingly, the only option with the learned Magistrate was to hold Accused guilty. By ignoring the settled proposition and the documentary evidence and giving unnecessary importance to oral testimony the learned magistrate committed an error in acquitting the Accused.
The Impugned order is accordingly quashed and set aside - Appeal allowed.
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2024 (2) TMI 765 - SUPREME COURT
Dishonour of Cheque - vicarious liability of the director - Whether a Director who has resigned from such position and which fact stands recorded in the books as per the relevant rules and statutory provisions, can be held liable for certain negotiable instruments, failing realization? - HELD THAT:- The veracity of Form-32 has neither been disputed by the Respondent nor has the act of resignation simpliciter been questioned. As such, the basis on which liability is sought to be fastened upon the instant appellant(s) is rendered questionable.
The record reveals the resignations to have taken place on 9th December 2013 and 12th March 2014. Equally, it is found that the cheques regarding which the dispute has travelled up the courts to have been issued on 22nd March 2014. The latter is clearly, after the appellant(s) have severed their ties with the Respondent- Company and, therefore, can in no way be responsible for the conduct of business at the relevant time. Therefore, there are no hesitation in holding that they ought to be then entitled to be discharged from prosecution.
All criminal proceedings pertaining to the instant appellant(s) arising out of the complaints filed by the respondent herein are quashed - Appeal allowed.
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2024 (2) TMI 722 - ALLAHABAD HIGH COURT
Dishonour of Cheque - insufficient funds - existence of debt and liability or not - alleged authorization letter has not been issued by the applicant no.2, who being a Managing Director is solely authorized to issue any such letter on behalf of the Company - summons passed without considering the evidence produced by the applicants - violation of principles of natural justice - HELD THAT:- After perusal of the materials available on record, prima facie it appears that the learned trial court has failed to appreciate the materials available on record and has committed manifest illegality while passing the impugned order while summoning the applicants as the same is passed without considering the evidence produced by the applicants, which is unsustainable in the eyes of law.
On perusal of the authorization letter dated 14.08.2020, it would reveal that the alleged authorization letter as claimed by the opposite party No.2 has been issued for the specific time period of 15 working days i.e. from 16.08.2020 till 30.08.2020 and there is no averment in the complaint made by the opposite party No.2 that the said letter has been extended further - It is admitted case of the complainant that the alleged authorization letter has not been issued by the applicant no.2, who being a Managing Director is solely authorized to issue any such letter on behalf of the Company, thus, there exists no debt or liability upon the applicants.
Section 138 is structured in two parts, the primary and the provisory. The contents of the proviso place conditions on the operation of the main provision, while it does not form a constituent of the crime itself, it modulates or regulates the crime in circumstances where,unless its provisions are complied with, the already committed crime remains impervious to prosecution - The cause of action for prosecution will arise only when the period stipulated in the proviso elapses without payment. Ingredients of the offence have got to be distinguished from the conditions precedent for valid initiation of prosecution. The stipulations in the proviso must also be proved certainly before the offender can be successfully prosecuted. But in the strict sense they are not ingredients of the deemed offence under the body of Section 138 of the N.I. Act, though the said stipulations must also be proved to ensure and claim conviction. It is in this sense that it is said that the proviso does not make or unmake the offence under Section 138 of the NI Act. That is already done by the body of the sections.
Hon'ble the Supreme Court of India in the case of Lalankumar Singh and Others vs. State of Maharashtra [2022 (10) TMI 1135 - SUPREME COURT] has specifically held in paragraph No.38 that the order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not.
The impugned summoning order passed under Section 138 N.I. Act, Police Station P.G.I., District Lucknow and the entire proceeding are against the spirit and directions issued by the Hon'ble Apex Court and are liable to be set aside - the matter is remanded back to the trial court - the instant application under Section 482 Cr.P.C. is allowed in respect of the instant applicants.
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2024 (2) TMI 721 - DELHI HIGH COURT
Dishonour of cheque - insufficient funds - vicarious liability of partners - cheque in question was issued from the account of the partnership firm and signed by both partners - no legal notice was issued to the partnership firm - partnership firm was not impleaded - HELD THAT:- Admittedly, the cheque in question was not issued by the partners from their individual accounts. Rather, it was issued from the account of the partnership firm and signed by both the partners. Thus, the liability of the partners is vicarious and flow from Section 141 of the NI Act.
It is apt to observe that sub-section 1 of Section 141 NI Act stipulates that if an offence is committed by a company, then every person, who at the time of commission of offence, was in charge and was responsible to the company for the conduct of its business, as well as company itself, would be guilty of the offence. The first proviso, which is in the nature of exception, provides that in case such a person is able to prove that offence was committed without his knowledge or that he exercised due diligence to prevent the commission of offence, then such a person would not be liable for punishment. The onus to satisfy the said requirement is on the person alleging/stating the same. However, this does not take away the initial onus cast on the complainant to establish the requirements of sub-section 1 of Section 141.
The issue whether any person under Section 141(1) can be proceeded against in the absence of a company, came up before the Supreme Court in Aneeta Hada v. Godfather Travels & Tours (P.) Ltd. [2012 (5) TMI 83 - SUPREME COURT], wherein a three Judges Bench held that for maintaining prosecution under Section 141, arraigning of company as an accused is imperative. The other categories of offenders can only be brought in the drag-net by way of vicarious liability. The position with respect to a partnership firm is no different. Likewise in the case of the partnership firm, the liability of its partners is vicarious and thus impleading of the partnership firm is necessary.
In the present case, though the complainant sought to overcome the said issue by way of filing an amended memo of parties however, the same would not come to its rescue. When a cheque issued for discharge of any debt or other liability is returned unpaid, the drawer or holder of the cheque in due course is required to issue a demand notice for payment of the amount under the cheque within 30 days of the receipt of the information from the bank of its dishonour and if the drawer fails to make such payment within 15 days of the receipt of the said notice, then the offence under Section 138 NI arises. In the present case, no such demand notice was issued to the partnership firm and as such, the filing of the criminal complaint suffered from a material defect.
The criminal complaint under Section 138 of the NI Act was filed only against the partners, without impleading the partnership firm and as such this Court deems it fit to exercise its power under Section 482 Cr.P.C. to quash the complaint.
Petition allowed.
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