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Indian Laws - Case Laws
Showing 141 to 160 of 26755 Records
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2024 (9) TMI 608
Permission for withdrawal of petition - improper declaration of account as NPA by respondent bank - seeking discretionary reliefs under Article 226 of the Constitution - HELD THAT:- This Court may hasten to point out that although submissions with regard to Clause 8 (2) (d) & (f) are tenable in law and the Ombudsman had jurisdiction to pass appropriate orders, learned counsels for respondents No.1 and 2 clearly brought to the fore that the account of the petitioner was never declared as an NPA, instead, it was irregular for their being several blemishes on its part and evidently,the petitioner is not coming clean since after the sanction/ credit facilities by respondent No.2/bank, sale proceeds appear to have been diverted and routed through the other bank i.e. BOB as per the statement of account placed on the record by respondent No.2 (Annexure R1-2), which would show that a credit of Rs. 34,82,875/- and Rs. 39,78,746/- on RTGS from BSF, Jammu was routed and credited in the account with BOB on 23.05.2019 and 30.07.2019 respectively, instead of being credited to the account of respondent No.2/bank.
The petitioner sought to withdraw the present writ petition unconditionally. However, since the misconduct of the petitioner comes out into the open, who has taken the Court for a ride, wasting much precious time of this Court and pursuing with this petition right from its institution i.e., since 08.03.2021, it is expedient that such request be not only declined, but also the petitioner should also be visited with exemplary costs.
There is no gainsaying that the grant of prerogative writs are discretionary reliefs and can be denied where the petitioner has not come to the Court with clean hands. Unhesitatingly, the petitioner has abused the process of law as he was in wanton breach of the sanction letter and thus, is not entitled to any relief.
The present writ petition is dismissed with token costs of Rs. 50,000/-, which be deposited with the Registrar General of this Court within a month from today, failing which the petitioner shall be liable to pay interest @ 6% per annum from the date of this order till payment.
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2024 (9) TMI 607
Setting aside the modified seniority list dated 07.10.2022 - direction to Union of India (UoI) to finalize and re-draw the seniority list of Inspectors in the Central Goods and Services Tax (CGST) and Custom Department in terms of the directions issued by the Apex Court in K. MEGHACHANDRA SINGH AND ORS. VERSUS NINGAM SIRO AND ORS. [2019 (11) TMI 1733 - SUPREME COURT] - HELD THAT:- Even though, the petitioners are correct in urging that they had joined service well before the date when the decision in K. Meghachandra was rendered, the fact remains that there is a categoric finding by a co-ordinate bench of this Court in YASH RATTAN & ORS VERSUS UNION OF INDIAN AND ORS. [2021 (4) TMI 1320 - DELHI HIGH COURT] that the seniority list dated 15.03.2018, which included the names of the petitioners, had not been finalized when the decision in K. Meghachandra was rendered.
In the light of the aforesaid categoric findings recorded in Yash Rattan that the seniority of Inspectors had not been finalized when the decision in K. Meghachandra was rendered and was therefore required to be redrawn in accordance with the principles laid therein, the learned Tribunal was justified in directing the UoI to re- draw the seniority list as per K. Meghachandra. In fact, even the petitioners’ plea is accepted that in Yash Rattan, this Court was not dealing with the inter se seniority of promotees and direct recruits, nothing much turns on the same.
Even though the Court was not specifically dealing with the inter se seniority of direct recruits and promotees, the fact remains that the seniority list which was under consideration by the Court reflected the names of direct recruits, including the petitioners herein. Once, this Court had opined in Yash Rattan that the seniority list dated 15.03.2018 had not attained finality and was therefore required to be re-drawn as per K. Meghachandra, it is not open for the petitioners to urge that their seniority has to be fixed as per the earlier decision in UNION OF INDIA VERSUS NR. PARMAR [2012 (12) TMI 872 - SUPREME COURT].
Furthermore, the decision in Yash Rattan, whereunder the seniority list was directed to be re-drawn as as per K. Meghachandra has already attained finality, having been unsuccessfully assailed before the Apex Court, both by the petitioners as also the UoI. In these circumstances, there are no infirmity with the directions issued by the learned Tribunal for re-drawing the seniority list in accordance with the principles laid down in K. Meghachandra.
The writ petitions along with the pending applications are, accordingly, dismissed.
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2024 (9) TMI 606
Bar to invoke arbitration - execution of a discharge voucher towards the full and final settlement between the parties - scope and standard of judicial scrutiny that an application Under Section 11(6) of the Act, 1996 can be subjected to when a plea of "accord and satisfaction" is taken by the Defendant - effect of the decision of this Court in In Re: IN RE. : INTERPLAY BETWEEN ARBITRATION AGREEMENTS UNDER THE ARBITRATION AND CONCILIATION ACT, 1996 AND THE INDIAN STAMP ACT, 1899 [2023 (12) TMI 897 - SUPREME COURT (LB)] on the scope of powers of the referral court Under Section 11 of the Act, 1996.
Whether the execution of a discharge voucher towards the full and final settlement between the parties would operate as a bar to invoke arbitration? - HELD THAT:- The Appellant has contested that once a full and final settlement was arrived at between the parties, the insurance contract between the parties could be said to have been discharged. Once the contract stood discharged, it was not open to the Respondent to resile from the settlement and invoke the arbitration clause, as no obligations remained to be fulfilled under the contract pursuant to the discharge of the contract. In other words, it is the contention of the Appellant that as no arbitrable disputes remained after a full and final settlement was arrived at, there was nothing left to be referred to the arbitrator and hence the appointment of arbitrator being an exercise in futility, should not have been undertaken by the High Court.
Once a contract has been fully performed, it can be said to have been discharged by performance. Once the contract has been discharged by performance, neither any right to seek performance, nor any obligation to perform remains under it - However, whether there has been a discharge of contract or not is a mixed question of law and fact, and if any dispute arises as to whether a contract has been discharged or not, such a dispute is arbitrable as per the mechanism prescribed under the arbitration agreement contained in the underlying contract.
Whether the arbitration agreement contained in a substantive contract survives even after the underlying contract is discharged by "accord and satisfaction"? - HELD THAT:- There is no Rule of an absolute kind which precludes arbitration in cases where a full and final settlement has been arrived at. In NATIONAL INSURANCE CO. LTD. VERSUS M/S. BOGHARA POLYFAB PVT. LTD. [2008 (9) TMI 864 - SUPREME COURT], discussing in the context of a case similar to the one at hand, wherein the discharge voucher was alleged to have been obtained on ground of coercion, it was observed that the discharge of a contract by full and final settlement by issuance of a discharge voucher or a no-dues certificate extends only to those vouchers or certificates which are validly and voluntarily executed. Thus, if the party said to have executed the discharge voucher or the no dues certificate alleges that the execution was on account of fraud, coercion or undue influence exercised by the other party and is able to establish such an allegation, then the discharge of the contract by virtue of issuance of such a discharge voucher or no dues certificate is rendered void and cannot be acted upon.
Once the full and final settlement of the original contract itself becomes a matter of dispute and disagreement between the parties, then such a dispute can be categorised as one arising "in relation to" or "in connection with" or "upon" the original contract which can be referred to arbitration in accordance with the arbitration Clause contained in the original contract, notwithstanding the plea that there was a full and final settlement between the parties.
What is the scope and standard of judicial scrutiny that an application Under Section 11(6) of the Act, 1996 can be subjected to when a plea of "accord and satisfaction" is taken by the Defendant? - HELD THAT:- The position after the decisions in M/S MAYAVTI TRADING PVT. LTD. VERSUS PRADYUAT DEB BURMAN [2019 (9) TMI 1548 - SUPREME COURT] and VIDYA DROLIA AND OTHERS VERSUS DURGA TRADING CORPORATION [2020 (12) TMI 1227 - SUPREME COURT] is that ordinarily, the Court while acting in exercise of its powers Under Section 11 of the Act, 1996, will only look into the existence of the arbitration agreement and would refuse arbitration only as a demurrer when the claims are ex-facie frivolous and non-arbitrable.
What is the effect of the decision of this Court in In Re: Interplay Between Arbitration Agreements under the Arbitration and Conciliation Act 1966 and the Indian Stamp Act 1899 on the scope of powers of the referral court Under Section 11 of the Act, 1996? - HELD THAT:- A seven-Judge Bench of this Court, in In Re: Interplay Between Arbitration Agreements under the Arbitration and Conciliation Act 1966 and the Indian Stamp Act 1899 speaking eruditely through one of us, Dr. Dhananjaya Y. Chandrachud, Chief Justice of India, undertook a comprehensive analysis of Sections 8 and 11 respectively of the Act, 1996 and, inter alia, made poignant observations about the nature of the power vested in the Courts insofar as the aspect of appointment of arbitrator is concerned.
Once an arbitration agreement exists between parties, then the option of approaching the civil court becomes unavailable to them. In such a scenario, if the parties seek to raise a dispute, they necessarily have to do so before the arbitral tribunal. The arbitral tribunal, in turn, can only be constituted as per the procedure agreed upon between the parties. However, if there is a failure of the agreed upon procedure, then the duty of appointing the arbitral tribunal falls upon the referral court Under Section 11 of the Act, 1996. If the referral court, at this stage, goes beyond the scope of enquiry as provided under the Section and examines the issue of "accord and satisfaction", then it would amount to usurpation of the power which the parties had intended to be exercisable by the arbitral tribunal alone and not by the national courts. Such a scenario would impeach arbitral autonomy and would not fit well with the scheme of the Act, 1996.
The power available to the referral courts has to be construed in the light of the fact that no right to appeal is available against any order passed by the referral court Under Section 11 for either appointing or refusing to appoint an arbitrator. Thus, by delving into the domain of the arbitral tribunal at the nascent stage of Section 11, the referral courts also run the risk of leaving the claimant in a situation wherein it does not have any forum to approach for the adjudication of its claims, if it Section 11 application is rejected.
The existence of the arbitration agreement as contained in Clause 13 of the insurance policy is not disputed by the Appellant. The dispute raised by the claimant being one of quantum and not of liability, prima facie, falls within the scope of the arbitration agreement. The dispute regarding "accord and satisfaction" as raised by the Appellant does not pertain to the existence of the arbitration agreement, and can be adjudicated upon by the arbitral tribunal as a preliminary issue.
The appointment of Justice K.A. Puj, former Judge of the High Court of Gujarat as an arbitrator to resolve the disputes between the parties is affirmed - the order staying the arbitration proceedings stands vacated.
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2024 (9) TMI 544
Res gestae - Relevancy of facts forming part of same transaction - Conviction u/s 29 read with 20(b)(ii)(c) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - aiding the business of drug trafficking - carrying narcotic substances in an auto-rickshaw - HELD THAT:- This Court has laid down the test for “acts forming part of same transaction” in Gentela Vijyvardhan Rao and Anr. v. State of Andhra Pradesh [1996 (8) TMI 571 - SUPREME COURT], wherein it has been held that it is based on spontaneity and immediacy of such statement or fact in relation to the fact in issue. Provided that if there was an interval which ought to have been sufficient for purpose of fabrication then the said statement having been recorded, with however slight delay there may be, is not part of res gestae.
In the present factual matrix, having perused the material it appears that the attempt towards raiding/searching the residence of Accused No. 4 was not explicitly in pursuance of detaining the said accused but the testimonies of the members of the raiding party showcase the idea of search of the house to be an afterthought with an admitted time gap of 40-45 minutes between having raided the auto-rickshaw which was alleged to be abandoned by the driver and Accused No. 4 and subsequent search of the house of Accused No. 4, wherein Accused No. 1 was present - Moreover, it appears from the record that even the idea to search the house was for the purpose of recovery of more contraband and not to apprehend the said absconded accused at the first instance. Thence, it can be safely concluded that the search conducted at the residence of the Accused No. 4 is not a continuance of action of the raiding party towards the search of the auto-rickshaw based on the secret information received by Mrs. Chaube. Accordingly, it does not appropriately fulfil the requirements of the test laid down in Gentela Vijyvardhan Rao.
Compliance of Section 42 of the NDPS Act, 1985 - HELD THAT:- From the perusal of provision of Section 42(1) of the NDPS Act, 1985, it is evident that the provision obligates an officer empowered by virtue of Section 41(2) of the NDPS Act, 1985 to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act, 1985 or record the grounds of his belief as per the Proviso to Section 42(1) of the NDPS Act, 1985 in case an empowered officer proceeds on his personal knowledge. While the same is to be conveyed to the immediate official superior prior to the said search or raid, in case of any inability to do so, the Section 42(2) of the NDPS Act provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso hereto.
In DHARAMVEER PRASAD @ DHARMBIR PRASAD VERSUS STATE OF BIHAR & ANR. [2018 (9) TMI 2147 - SUPREME COURT (LB)], there was non-examination of the independent witness without any explanation provided by the prosecution and even the panchnama or the seizure memo were not prepared on the spot but after having had reached police station only. Since the vehicle was apprehended and contraband was seized in non-compliance of the Section 42 of the NDPS Act, 1985 - conviction and sentence of the appellant therein was set aside.
It is pertinent to note that the empowered Gazetted Officer must have reason to believe that an offence has been committed under Chapter IV of the NDPS Act, 1985, which necessitated the arrest or search. As per Section 41(2) of the NDPS Act, 1985, such reason to believe must arise from either personal knowledge of the said Gazetted Officer or information given by any person to him. Additionally, such knowledge or information is required to be reduced into writing by virtue of expression “and taken in writing” used therein.
While the facts and evidences are appreciated in the instant case, the testimonies of the PW-01 and the members of the raiding party do not present such a compliance of the information of rights to the Accused No. 1 herein. While a claim is made to this effect, nothing has come up from the perusal of the panchnama or the deposition of the PW-01 to this effect. Accordingly, the authorities have further failed to protect the inherent rights granted to the Accused No. 1 by virtue of the statutory safeguards.
Section 67 is at an antecedent stage to the investigation, which occurs after the empowered officer under Section 42 of the NDPS Act, 1985 has the reason to believe upon information gathered in an enquiry made in that behalf that an offence under NDPS Act, 1985 has been committed and is thus not even in the nature of a confessional statement. Hence, question of its being admissible in trial as a confessional statement against the accused does not arise.
These appeals are allowed by setting aside the impugned judgment of the High Court as well as that of the Trial Court. The appellants are acquitted of the charges framed against them by giving benefit of doubt.
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2024 (9) TMI 453
Dishonour of cheque - legally enforceable debt or not - acquittal of accused - rebuttal of presumption arising in favour of the Petitioner under Sections 118 and 139 of NI Act - HELD THAT:- Appellate Court has, no doubt, wide powers to re-appreciate the evidence in an appeal against acquittal and come to a different conclusion, on facts and law, but there is no gainsaying that this power must be exercised with due care and caution since the presumption of innocence at the start of the trial is strengthened by acquittal of the accused by a judicial order.
The Supreme Court in GHUREY LAL VERSUS STATE OF U.P [2008 (7) TMI 951 - SUPREME COURT], elucidated and crystallized the principles that the Courts are required to keep in mind as guiding light, when deciding an appeal against a judgment acquitting the accused held that 'The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial Court. The trial Court's acquittal bolsters the presumption that he is innocent.'
It is a settled law that in matters relating to dishonour of cheques, Courts have to consider whether the ingredients of Section 138 of NI Act are made out and whether the accused is able to rebut the statutory presumption under Section 139 of NI Act.
In light of the evidence on record, Appellate Court concluded that the defence of the Respondent was a plausible one that he had given the cheque of Rs. 8 lacs for investment and he was able to successfully rebut the presumption under Sections 118 and 139 of NI Act and that no evidence came on record to substantiate that Petitioner had advanced a loan of Rs. 14 lacs to the Respondent. This Court finds no infirmity in this conclusion and in this context, the judgment of the Supreme Court in Kundan Lal Rallaram v. The Custodian, Evacuee Property Bombay, [1961 (3) TMI 100 - SUPREME COURT] perused, where the Supreme Court observed that when the creditor failed to produce his account books, the Court can raise a presumption of the fact under Section 114 of the Indian Evidence Act that the evidence if produced would have shown the non-existence of the consideration.
Thus, no interference is warranted in the findings and conclusions of the Appellate Court in the impugned judgment dated 09.06.2016, wherein the defence set up by the Respondent was found to be a probable one on the touchstone of preponderance of probabilities and thus no ground for grant of leave to appeal is made out.
Petition seeking leave to appeal is hereby dismissed.
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2024 (9) TMI 303
Levy of penalty - Specific performance of the agreement for sale - appellant claims possession of suit schedule property as part performance under the agreement of sale - appellant argued that the deficit stamp duty should alone be collected at the time of the passing of the judgment and decree, and the levy of penalty is illegal and erroneous - HELD THAT:- In the present case, the appellant wanted the suit agreement to be admitted in evidence at the interlocutory stage. The suit was filed on 12.08.2015. On 14.08.2015, the case was posted before the court, and the counsel for the appellant in the trial court agreed to pay proper/sufficient stamp duty and penalty on the certified copy of the agreement to sale. In other words, the appellant invited the court to decide under Section 34(1) of the Act - when the trial court imposed ten times penalty on the deficit stamp duty, the appellant argued in the High Court that he would pay the stamp duty when the decree of specific performance was granted. In our considered view, the case of appellant is covered by Section 34 of the Act, and rightly ten-times penalty is imposed. Further, the appellant having invited the court, cannot now express the willingness to exercise the option under Section 37(2) of the Act. On the contrary, Section 37(1) of the Act would apply in the present case.
The High Court, through the impugned order, while relying on the ratio in GANGAPPA AND ORS. VERSUS FAKKIRAPPA [2018 (12) TMI 2000 - SUPREME COURT] and Digambar Warty and others v. District Registrar, Bangalore Urban District and another [2012 (12) TMI 1245 - KARNATAKA HIGH COURT], has rightly rejected the prayer of the appellant.
There are no ground warranting interference in the order impugned - appeal dismissed.
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2024 (9) TMI 237
Maintainability of pettion - availability of efficacious and alternative remedy - Liability to pay stamp duty on the order of NCLT Allahabad in view of the express statutory provision contained in the Indian Stamp Act, 1899 - order passed by NCLT Allahabad is an instrument or not.
Whether the Petitioner has an efficacious and alternative remedy and whether this objection can be considered in the light of order dated 25-11-2020 passed by this Court? - whether the principle of res-judicata is applicable to the interlocutory orders or not? - HELD THAT:- Since, the respondents did not challenge the order dated 25-11- 2020, therefore, the principle of Res-Judicata would apply and the respondents cannot re-agitate the question of alternative remedy in the same proceedings. Therefore, the preliminary objection with regard to availability of alternative remedy is hereby rejected.
What was the very genesis for starting the proceedings and its effect? - HELD THAT:- The impugned order is primarily based on interpretation of law. According to Collector of Stamps, Sidhi, the instrument became chargeable on the date of execution i.e., 2-3-2017, whereas it is the case of the Petitioners that the instrument is chargeable on the date when it is “received” in State of Madhya Pradesh. Therefore, this Court is of the considered opinion, that so far as the interpretation of law is concerned, the vague Show Cause Notice will not have any adverse effect. Therefore, this Court would like to proceed further to decide that “which date is relevant for making an instrument chargeable in State of Madhya Pradesh, i.e., whether the date on which the instrument was executed in State of Uttar Pradesh or the date on which the instrument was received in Madhya Pradesh” - the submissions made by the Counsel for the parties shall be considered in the light of the law relating to interpretation of fiscal laws.
Whether order dated 2-3-2017 passed by NCLT Allahabad is an instrument? - HELD THAT:- The order passed by NCLT Allahabad, thereby accepting the Scheme of arrangement by which the properties were transferred is an “instrument” chargeable under Indian Stamp Act.
Whether the Stamp Duty is payable on the date of execution of instrument or it is payable when it is received in State of M.P.? - HELD THAT:- In order to apply the provisions of Section 19-A of Indian Stamp Act, the date of ascertainment and payment of Stamp Duty is not material, but the important aspect is the liability to pay stamp duty. In the present case, since, the instrument was executed in State of Uttar Pradesh, therefore, the first liability of the Petitioner No.1 was to pay the Stamp Duty chargeable in the State of U.P. and thereafter, the Petitioner No.1 was liable to pay the difference of stamp duty to the State of M.P., provided the rate of duty is higher than that of State of Uttar Pradesh - since, the instrument was executed in State of Uttar Pradesh, therefore, the date of execution of instrument for the purposes of charging stamp duty in State of M.P. would not be relevant but the relevant date would be the date on which the instrument was received in State of M.P. However, as the Petitioner No.1 had not paid the stamp duty in Uttar Pradesh prior to ascertainment of stamp duty by Collector of Stamps, Sidhi, therefore, the Petitioner No.1 would not be entitled to seek adjustment/ set off of the stamp duty paid by it in Uttar Pradesh.
What is the date on which the instrument was received in the State of M.P.? - HELD THAT:- Not only there was reference of order of NCLT Allahabad in the registered deeds, but the execution of four Mining Lease Transfer Deeds clearly show that the Petitioner No.1 had acted upon the order passed by the NCLT Allahabad. Once, the Petitioner no.1 had put the instrument i.e., order of NCLT Allahabad into operation and had also got the mining lease transferred in its name, then it is held that even if the copy of order of NCLT Allahabad might not have been filed, but still the reference of said order and further action on the basis of said order, would certain mean that the “instrument” i.e., order of NCLT Allahabad was received in State of M.P. on 29-6-2017 - the chargeable “instrument” i.e., order of NCLT Allahabad was received in Madhya Pradesh on 29-6-2017 and not on 24-10-2017 or 5-8-2019.
Whether the Notification dated 3-7-2017 by which cap of Rs. 25 Cr. was provided would apply to the facts of the case or not? - HELD THAT:- Since, the “instrument” i.e., the order of NCLT, Allahabad was already received in M.P. on 29-6-2017, therefore, it became chargeable on the said date and the rate of stamp duty which was prevailing on 29- 6-2017 would apply. It is held that since, the cap on stamp duty to the tune of Rs. 25 Cr came into existence by Notification dated 3-7-2017, therefore, the Petitioner No. 1 is not entitled for the benefit of cap of Rs. 25 cr. Thus, the Collector of Stamps, Sidhi did not commit any mistake by not extending the benefit of cap of Rs. 25 cr. Thus, the findings recorded by the Collector of Stamps, Sidhi regarding cap of Rs. 25 cr. is affirmed, although on different ground. It is further observed, that the findings given by Collector of Stamps, Sidhi are not well reasoned as claimed by State Counsel.
Whether Stamp Duty of 1% is chargeable on movable properties? - HELD THAT:- From plain reading of Section 9 of Indian Stamp Act, it is clear that Section 9 is not a charging provision and it merely gives power to the Govt. to reduce, remit or compound duties. Since, there is no provision in proviso to Article 25 of Schedule 1-A of Indian Stamp Act, for charging stamp duty on movable property, therefore, the State Counsel is incorrect in submitting that 1% stamp duty can be charged on movable properties. Therefore, the stamp duty imposed by the Collector of Stamps, Sidhi, on the movable properties of the Petitioner No.1 is bad in law and is hereby quashed.
Whether Upkar Cess @ 10% is chargeable on stamp duty - HELD THAT:- None of the parties have disputed the fact that Upkar Cess is chargeable on the stamp duty @ 10%. Therefore, imposition of Upkar Cess @ 10% on stamp duty is hereby affirmed.
Whether the Janpad Cess @ 1% is payable on the value of immovable assets or on Stamp Duty? - HELD THAT:- Since, this Court has already held that the “instrument” i.e., order of NCLT Allahabad was received in Madhya Pradesh on 29-6-2017, therefore, whatever Janpad Cess was payable on the said date would apply. Since, the Notifications dated 6-10-2018 and 25-8-2020 are subsequent to the relevant date, therefore, the Janpad Cess @ 1% on the stamp duty is not chargeable, but it is chargeable @ 1% of the value of the immovable assets. Therefore, the imposition of Janpad Cess @ 1% on the value of the immovable assets is hereby affirmed.
Penalty - HELD THAT:- The Petitioner is correct in submitting that while calculating the Penalty, the Cess payable under different statutes should not have been taken into consideration. Therefore, the Collector Stamps, Sidhi is directed to recalculate the Penalty by excluding the Janpad Cess and Upkar Cess.
Thus, the Petition filed by the Petitioners is partially allowed and the Stamp Duty fixed/ascertained by the Collector of Stamps, Sidhi @ 5% on the value of immovable assets is upheld; the Upkar Cess @ 10% on stamp duty is also upheld; Janpad Cess @ 1% on the value of the immovable property is also affirmed. However, the Stamp Duty on the movable assets is hereby quashed. However, the matter is remanded back to the Collector of Stamps for reassessing the amount of Penalty by not taking the Upkar Cess and Janpad Cess into consideration.
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2024 (9) TMI 236
Dishonour of cheque - compounding of offence under Section 147 of the Act - amicable settlement of dispute - whether this court after upholding the judgment of conviction and order of sentence recorded by the court below can proceed to review its own judgment dated 31.3.2023, whereby criminal revision petition having been filed by the petitioner accused came to be dismissed or not? - HELD THAT:- This Court vide judgment in Gulab Singh v. Vidya Sagar Sharma [2017 (12) TMI 1837 - HIMACHAL PRADESH HIGH COURT], while relying upon judgment of Hon'ble Apex Court as well as other Constitutional Courts has already held that court, while exercising power under Section 147 of Act can proceed to compound offence even in those cases, where accused stands convicted.
Since in the case at hand, petitioner after being convicted under Section 138 of the Act has compromised the matter with the respondent-complainant-Bank and in terms thereof has already paid the entire amount of compensation, prayer for compounding the offence can be accepted in terms of judgment passed by the Hon’ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], wherein it has been categorically held that court, while exercising power under Section 147 of the Act, can proceed to compound the offence even after recording of conviction by the courts below.
The parties are permitted to get the matter compounded in the light of the compromise arrived inter se them. Accordingly, judgment of conviction and sentence recorded by the learned trial court is quashed and set-aside and petitioner is acquitted of the charge framed against him. His bail bonds are discharged. Amount, if any, deposited by the petitioner before the court below be released in his favour on his filing appropriate application.
Petition disposed off.
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2024 (9) TMI 172
Land acquisition proceedings - Doctrine of merger - private interest and public interest - principles of res judicata - prospective overruling - dismissal of a civil appeal preferred by one appellant in the first round operates as res judicata against the other appellant in the second round or not - suppression of the first round of litigation by the appellants constitutes a material fact, thereby inviting an outright dismissal of the appeals at the threshold or not - doctrine of merger operate as a bar to entertain the civil appeals in the present case or not - previous determination of the rights of subsequent purchasers in an inter se dispute precludes the same issue from being reconsidered between the same parties or not.
Res judicata - HELD THAT:- Res judicata, as a technical legal principle, operates to prevent the same parties from relitigating the same issues that have already been conclusively determined by a court. However, it is crucial to note that the previous decision of this Court in the first round would not operate as res judicata to bar a decision on the lead matter and the other appeals; more so, because this rule may not apply hard and fast in situations where larger public interest is at stake. In such cases, a more flexible approach ought to be adopted by courts, recognizing that certain matters transcend individual disputes and have far-reaching public interest implications.
Suppression of material facts by appellants - HELD THAT:- A Bench of two Hon’ble Judges of this Court in M/S S.J.S. BUSINESS ENTERPRISES VERSUS STATE OF BIHAR AND ORS [2004 (3) TMI 752 - SUPREME COURT] held that a fact suppressed must be material; that is, if it had not been suppressed, it would have influenced the merits of the case.
Law is well settled that the fact suppressed must be material in the sense that it would have an effect on the merits of the case. The concept of suppression or non-disclosure of facts transcends mere concealment; it necessitates the deliberate withholding of material facts—those of such critical import that their absence would render any decision unjust. Material facts, in this context, refer to those facts that possess the potential to significantly influence the decision-making process or alter its trajectory. This principle is not intended to arm one party with a weapon of technicality over its adversary but rather serves as a crucial safeguard against the abuse of the judicial process.
Doctrine of merger - HELD THAT:- Having held that the concept of public interest need not be viewed narrowly only on the yardstick of loss to public exchequer and that these are the cases where public at large has acquired interest in the public infrastructures already complete or in process of completion, if the doctrine of merger is applied mechanically in respect of Groups A and B.1 cases, it will lead to irreversible consequences. We are satisfied that the element of disparity between Groups A and B.1 cases vis- à-vis cases falling in Group C is liable to be eliminated and this can only be done by invoking our extraordinary power under Article 142 of the Constitution of India so that complete justice done between the expropriated landowners, the State and its developing agencies and most importantly the public in general who has acquired a vested right in the public infrastructure projects.
Allegations of fraud committed by landowners - HELD THAT:- The law with respect to “who” can invoke section 24(2) of the 2013 Act has been well settled after the decision of this Court in Shiv Kumar [2019 (10) TMI 1411 - SUPREME COURT] wherein it was held that subsequent purchasers do not have the locus to contest the acquisition and/or claim lapse of the acquisition proceedings. This decision has expressly overruled the previous decision of this Court in Manav Dharam Trust [2017 (5) TMI 1761 - SUPREME COURT] by recognizing the statutory intention behind the 2013 Act, which sought to benefit owners of lands who purchased the lands before the Notification under section 4(1) of the 1894 Act but not for the benefit of those who have purchased the lands after vesting of lands with the State.
Petition disposed off.
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2024 (9) TMI 171
Dishonour of Cheque - Seeking leave to appeal for setting aside of the judgment - burdenn of proving - Section 138 of NI Act - HELD THAT:- The respondent has not denied that the cheques in question belong to him, however, he has denied his signature(s) thereon. In fact, the respondent has neither admitted to the issuance of the cheques in question nor his signature(s) at any stage, be it at the time of framing of notice under Section 251 of the CrPC or at the time of recording of his statement under Section 313 of the CrPC or at the time of producing his evidence.
It was incumbent upon the petitioner to discharge the initial burden of proving the issuance of the cheques in question. Besides this, the petitioner, for reasons best known to himself, chose not to examine any other independent witnesses barring himself, especially none of the concerned Bank officials. The cheques in question are themselves shrouded in mystery as there is no clarity qua the facets of as to firstly, who had filled them, secondly, when were they issued and lastly, where were they issued. In essence thereof, as the petitioner was unable to discharge the statutory burden cast upon him, there was no occasion for the presumption under Section 139 of the NI Act arising in his favour.
The petitioner was unable to prove anything as regards to his alleged long standing friendly relations with the respondent or as regards any cogent reasons for him allegedly extending an amount of Rs.15,00,000/- to the respondent. Further, the petitioner has not been able to provide any reasonable explanation as to why and based upon what relationship, he had advanced the huge sum of Rs.15,00,000/- to the respondent without taking any receipt or acknowledgment thereof - the respondent, indeed raised a probable defence and was steadfast is his version all throughout, from his response to the legal notice till the proceedings before the learned Trial Court. Also, the respondent had already lodged a Police complaint qua the various documents including the cheques in question being lost much prior to the issuance of the cheques in question. Further, during cross-examination, the respondent had himself called a Bank official, who had indeed deposed that the property papers were in fact deposited in the Bank.
This Court finds that the impugned order passed by the learned Trial Court is well reasoned and balanced as it has carefully taken note of all the factors necessary for deciding a complaint under Section 138 of the NI Act and has accordingly adjudicated upon the present dispute.
Petition dismissed.
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2024 (9) TMI 106
Scope of Sections 33, 34, 37, and 39 of the Karnataka Stamp Act, 1957 - interpretation of statute - definition of conveyance - agreement of sale - perpetual injunction restraining the respondent from interfering with the appellant’s peaceful possession and enjoyment of the plaint schedule property.
Whether the agreement of sale dated 29.06.1999, with a recital on delivery of possession to the appellant, conforms to the definition of conveyance under Section 2(d) read with Article 20(1) of the Schedule of the Act or not? - HELD THAT:- The High Court has correctly distinguished the jurisdiction vested in every person or a person in the public office on the one hand and on the other hand the District Registrar in determining the penalty payable on insufficiently stamped instrument. The ratio in all fours is applicable to the circumstances of the case - the appellant, with a view to produce in evidence the agreement of sale in the suit, must pay the deficit stamp duty and penalty.
Whether, in the facts and circumstances of the case, the order dated 23.01.2019 of trial court, as confirmed by the impugned orders dated 23.08.2019 and 14.09.2021, are legal and valid or call for interference by this Court under Article 136 of the Constitution of India? - HELD THAT:- The scheme does not prohibit a party to a document to first invoke directly the jurisdiction of the District Registrar and present the instrument before Court/Every Person after complying with the requirement of duty and penalty. In such an event, the available objection under Sections 33 or 34 of the Act is erased beforehand. The quantum of penalty is primarily between the authority/court and the opposing party has little role to discharge.
Before the stage of admission of the instrument in evidence, the respondent raised an objection on the deficit stamp duty. Therefore, it was the respondent who required the suit agreement to be impounded and then sent to the District Registrar to be dealt with under Section 39 of the Act. In this case, the respondent desired the impounding of the suit agreement and collect the deficit stamp duty and penalty. The trial court is yet to exercise its jurisdiction under Section 34 of the Act - The imposition of penalty of ten times at this juncture in the facts and circumstances of this case is illegal. The instrument is sent to the District Registrar, thereafter the District Registrar in exercise of his jurisdiction under Section 39 of the Act, decides the quantum of stamp duty and penalty payable on the instrument. The appellant is denied this option by the impugned orders. It is trite law that the appellant must pay what is due, but as is decided by the District Registrar and not the Court under Section 34 of the Act.
The direction to pay ten times the penalty of the deficit stamp duty merits interference and accordingly is set aside. The trial court is directed to send the agreement of sale dated 29.06.1999 to the District Registrar to determine the deficit stamp duty and penalty payable - Appeal allowed in part.
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2024 (9) TMI 105
Applicaility of arbitration clause in the contract - After the contract granted to the appellant was rescinded, the appellant invoked Section 7 of the 1983 Act by approaching the Arbitration Tribunal - HELD THAT:- The order of the Arbitration Tribunal, holding that the Arbitration Act will apply, led the appellant to file a petition under Section 11(6) of the Arbitration Act, which was not objected to on the grounds of the applicability of the 1983 Act. The objection of the State government was confined to the merits of the claim. The award is only in the sum of Rs. 6,52,235/- with interest. The award was made on 25th April 2014. Therefore, in the facts of the case, it will be unjust to set aside the award only on the ground of the failure of the appellant to take recourse to the 1983 Act. In fact, the appellant had taken recourse to the 1983 Act before seeking the appointment of an Arbitrator. In this case, as can be seen from the impugned judgment, the award has been set aside only on the ground that the appellant ought to have invoked the provisions of the 1983 Act.
Even assuming that the observations in paragraph 17 of the decision in the case of MADHYA PRADESH RURAL ROAD DEVELOPMENT AUTHORITY & ANR. VERSUS M/S. L.G. CHAUDHARY ENGINEERS AND CONTRACTORS [2018 (3) TMI 2044 - SUPREME COURT], are not applicable, this is a fit case to exercise jurisdiction under Article 142 of the Constitution of India to ensure that complete justice is done. Therefore, by setting aside the impugned judgment, the appeal under Section 37 of the Arbitration Act will have to be restored with a request to the High Court to decide the same on merits.
The impugned judgment and the order passed in the Arbitration Appeal are set aside - Appeal allowed.
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2024 (9) TMI 104
Dishonour of Cheque - burden of proof of outstanding due on the complainant - failure to consider in the Criminal Revision filed by the petitioner that the sentence awarded is illegal.
Whether the appellate court has acted with material irregularity and illegality in assuming burden of proof of outstanding due on the complainant in the facts and circumstances of this case? - HELD THAT:- The respondent-accused admitted her signature on the cheque but did not appear in the witness-box to discharge the reverse burden. Her husband DW-1 claims to have been looking after the business of Sushila & Co., but failed to discharge this burden by producing books of accounts etc. or folio of cheque-book as to against which head the cheque was issued or in fact there is entry of purchase of 100 Tins of Oil in the books of accounts or not, rather simply conveyed evasive reply that he is not aware of the fact that whether Sushila & Co., had purchased 100 Tins of Oil from the petitioner, therefore, the accused evidently failed to discharge the burden to prove that the cheque was not issued against existing debt.
The learned appellate court has mis-construed the law that burden of proof was on the complainant. Further, the appellate court has travelled beyond the scope of proof of charge under Section 138 of the Negotiable Instruments Act by finding fault that the residential address of accused is different than her business premises. The accused not has denied that she has business at the referred premises.
Whether the appellate court failed to consider in the Criminal Revision filed by the petitioner that the sentence awarded is illegal inasmuch as it is not consistent with the requirement of minimum punishment under Section 138 of the Negotiable Instruments Act? - HELD THAT:- A bare perusal of provisions of Section 138 of the Negotiable Instruments Act makes it crystal clear that for the offence under the said provision, the punishment would be imprisonment for a term which may extend to two years’ or with fine which may extend to twice the amount of the cheque, or with both. In the case on hand, the trial Judge has awarded sentence only but the sentence cannot be less than the cheque amount. It may extend to twice the cheque amount. Since the trial Judge has not passed minimum sentence consistent with the law, the same is revisable one, hence, dismissal of Criminal Revision No.24/1999 stands set aside and it is restored before the appellate court, who shall pass order according to law considering propriety of sentence.
Technically the petitioner should have challenged the common impugned order separately as the said order was passed in above referred criminal appeal as well as criminal revision petition. The court can pass a common order in two matters connected with each other but it should be challenged by filing separate petitions. However, the aforesaid technicality would not fetter the powers of this Court under Section 397 Cr. P.C., to suo moto take cognizance and revise, if any illegality or correctness in the proceedings before the inferior criminal court, comes to the notice of Court.
This criminal revision is allowed.
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2024 (9) TMI 103
Dishonour of Cheque - discharge of legal laibility - quashing of complaint under section 138 of Negotiable Instruments Act, 1881 and summoning order - prosecution under section 141 of the Negotiable Instruments Act, 1881 arraigning of a company as an accused - HELD THAT:- The present case in hand pertains to quashing of complaint under section 138 of Negotiable Instruments Act, 1881 wherein the petitioner has been alleged to have defraud the respondent-company whereas it has been alleged by the respondent-company that the petitioner has clearly admitted the cheques in question to have been signed by him in discharge of his legal liability.
The present petitioner had signed the cheque in question bearing no. 113603 (Annexure P-3) as an authorized signatory of M.R.Trading co. Indeed it is not the case of the respondent that he was not aware of the said fact. Moreover, even the statutory notice, before filing the complaint was issued only to the present petitioner and not to the company wherein M.R.Trading Co was required to be arrayed as an accused and in view of the settled law in the case of Aneeta Hada Vs. M/s Godfather Travels and Tours Pvt Ltd. [2012 (5) TMI 83 - SUPREME COURT] wherein it has been held that for maintaining the prosecution under section 141 of the Negotiable Instruments Act, 1881 arraigning of a company as an accused is imperative.
A company being an artificial person acting through its management has a separate legal entity wherein it owns its assets and is liable for debts. To attract section 138 of NI Act, it is necessary to understand the essence of the section 141 of NI Act in true sense which unmistakably on a plain reading itself makes clear the importance of impleading the company in cases involving cheques issued on its behalf.
This court while finding merit in this case strongly holds that the petitioner in his official capacity cannot be prosecuted in the absence of the company. Even otherwise, it is crystal clear that the petitioner had signed the cheque in his capacity of an authorized signatory however, the trial court while passing summoning order had not looked into this legal aspect.
The complaint dated 04.02.2021 and the summoning order dated 10.03.2021 passed by the trial court, Chandigarh suffer from serious legal infirmity and are ordered to be quashed.
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2024 (9) TMI 102
Dishonour of cheque - insufficient funds - failure to rebut the presumption contained in Section 139 of the NI Act - HELD THAT:- It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, [2022 (7) TMI 1455 - SUPREME COURT] that the revisional court is not an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law.
The Court has to start with the presumption that the cheque was issued in discharge of legal liability and the burden is upon the accused to prove the contrary.
It was laid down by the Hon'ble Supreme Court in Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd. [2016 (9) TMI 867 - SUPREME COURT] that issuing a cheque toward security will also attract the liability for the commission of an offence punishable under Section 138 of N.I. Act.
This position was reiterated in Sripati Singh v. State of Jharkhand, [2021 (11) TMI 66 - SUPREME COURT] it was held that a cheque issued as security is not a waste paper and complaint under Section 138 of the N.I. Act can be filed on its dishonour.
The accused admitted that she had received a notice and claimed that she came to know about the dishonour after the receipt of the notice. Therefore, the receipt of the notice is not disputed - it was duly proved on record that the accused had issued a cheque in discharge of her legal liability and the cheque was dishonoured due to insufficient funds and the accused failed to repay the amount despite the receipt of valid notice of demand. Therefore, all the ingredients of Section 138 of the NI Act were duly satisfied.
The amount of compensation of ₹2,40,000/- is not excessive and no interference is required with the same.
The present revision fails and the same is dismissed.
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2024 (9) TMI 57
Rejection of application moved for seeking discharge in the matter and proceeding to frame charges for having entered into a criminal conspiracy with an object to facilitate illegal sale of coal rejects by GCWL that were generated during washing of coal and to have gained undue pecuniary advantage therefrom - challenge to allocation of coal blocks to Private Companies for the period between 1993 and 2011 - violation of principles of trusteeship of natural resources by giving away precious resources as largesse without complying with the mandatory provisions of the MMDR Act and 1973 Coal Act.
Did CBI primarily rely on the Audit Report of the CAG? - HELD THAT:- The respondent–CBI made the Audit Report of the CAG submitted in 2013, a launching pad for initiating the prosecution of the appellants in respect of the allegations levelled in the present case and subsequently sought to substantiate them by delving into the records maintained by KPCL, KECML and GCWL. In other words, there was no move within the Department to investigate KPCL or KECML before 2015. The PE’s registered in the year 2012 did not inculpate the appellants in any manner. The entire focus of the said PE’s was on the larger issue of irregularities in the allocation of coal blocks through the Government dispensation route. In this background, the respondent–CBI cannot be heard to state that CBI was independently investigating the matter at hand well before 2015 or the Audit Report of the CAG of 2013 was not the trigger point for commencing the investigation.
Could the Audit Report of the CAG fasten any liability on KECML? - HELD THAT:- This Court having already dismissed the appeal filed by KPCL against the judgment of the Karnataka High Court, having held in clear terms that the CAG Report could not form the basis for launching proceedings against the appellants and further, having upheld the findings returned by the Karnataka High Court that the CAG Report appears to have been the starting point for the entire disputes between the parties who till then, were smoothly discharging their obligations under various agreements, there is no reason to take a different view only on the ground that the respondent–CBI was not a party in the aforesaid proceedings. The chronology of the events speak for themselves and need no further elaboration.
Import of the Judgment of the Karnataka High Court in EMTA COAL LIMITED AND ORS. VERSUS KARNATAKA POWER CORPORATION LIMITED [2016 (3) TMI 1423 - KARNATAKA HIGH COURT] - HELD THAT:- If there was any breach of contract or default on the part of KECML, KPCL was well empowered to determine the lease. However, KPCL did not do so. Instead, on being confronted with the Audit Objections taken by CAG, it raised a demand on KECML for the value of the coal rejects. This demand was quashed and set aside by the Karnataka High Court and this Court - this Court cannot turn a blind eye to the view taken in the judgement dated 24th March, 2016 passed by the Division Bench of the High Court of Karnataka in a dispute directly arising between KPCL and KECML pertaining to the very same cause of action based on the obligations cast on both the parties under various agreements executed for the development of captive coal blocks and for supply of coal, which was finally upheld by this Court in KARNATAKA POWER CORPORATION LIMITED VERSUS EMTA COAL LIMITED AND ORS. [2022 (5) TMI 1648 - SUPREME COURT (LB)]. The said judgments have cleared KECML of any blame. On the same set of facts and logic, no criminality can be attributed to the appellants.
Sanctity of an Audit Report in Law - HELD THAT:- In the instant case, admittedly the aforesaid procedure has not been followed. As noticed above, the CAG Report is subject to scrutiny by the Parliament and the Government can always offer its views on the said report. Merely because the CAG is an independent constitutional functionary does not mean that after receiving a report from it and on the PAC scrutinizing the same and submitting its report, the Parliament will automatically accept the said report. The Parliament may agree or disagree with the Report. It may accept it as it is or in part. It is not in dispute that the Audit Report of the CAG has not been tabled before the Parliament for soliciting any comments from the PAC or the respective Ministries - the views taken by the CAG to the effect that tremendous loss had been caused to the public exchequer on account of the coal rejects being disposed of by the KPCL and KECML remains a view point but cannot be accepted as decisive. The respondent–CBI has largely relied on the findings and the conclusions drawn in the Audit Report of the CAG to launch the prosecution against the appellants on an assumption that the said Report has the seal of approval of the Parliament and has attained finality, which is not the case.
Denial of Sanctions by the Sanctioning Authorities and the effect on the Appellants - HELD THAT:- After Sanctioning Authority had scrutinized all the relevant documents and the depositions as many as of 67 witnesses submitted by the respondent-CBI, it observed that there was no evidence to show that any rejects generated by washing of coal had been sold or that KPCL had suffered an unlawful loss during the process. As a result, the Board of KPCL refused to grant sanction to the respondent-CBI to prosecute Mr. R. Nagaraja for offences alleged to have been committed by him. It is noteworthy that no appeal has been filed by the respondent – CBI against denial of sanction.
The respondent-CBI having accepted the decision taken by the Sanctioning Authority in respect of Mr. R. Nagaraja and the decision of the Competent Authority in the Central Government in respect of Mr. Yogendra Tripathi, both senior most serving officers of KPCL and were also on the Board of KECML, cannot be permitted to argue that these were merely administrative decisions and even if permission to prosecute the aforesaid officers has been denied, the Department can still proceed against the appellants based on the very same set of material/documents/evidence etc. that have been minutely scrutinized by different authorities at the highest level and they have independently arrived at an identical conclusion of refusing to grant sanction to prosecute senior functionaries of KPCL. Simply because the said senior functionaries of KPCL were public servants, does not detract from the fact that the respondent-CBI has described them as co-accused in a criminal conspiracy and attributed similar motives to them as the appellants herein. If they have been let off the hook and the respondent-CBI has not challenged the said decisions, there is no reason to proceed against the appellants herein on the basis of the very same set of facts and material gathered during the course of investigation.
Effect of the absence of any strategy in the Mining plan to dispose off the coal rejects - HELD THAT:- The Central Government had not come out with any specific plan to dispose off the coal rejects is validated by the reply furnished by the Minister of State, MoC, in the Lok Sabha in response to an unstarred question seeking an answer from the Government of India as to whether it had framed any National Policy for exploitation of the coal rejects. The reply given was that the Government had not framed any National Policy for exploitation of coal rejects and the same was still under consideration. That being the position, it was left to KPCL and KECML to devise a satisfactory and safe method to dispose off the coal rejects. This was done in terms of Article 5(2)(b) of the JVA that required KECML to dispose off the rejects in a manner that would ensure that there was no threat to the environment. We do not find any irregularity in the route adopted to dispose off the coal rejects.
Was KECML required to account for the coal rejects? - HELD THAT:- The agreement governing the parties required KECML to dispose off the rejects safely. KECML was not required to account for the coal rejects to KPCL. KPCL itself understood the clauses in the JVA and the FSA to mean the same and it was satisfied with the manner in which KECML was discharging its obligations under the agreements till Audit Objections were raised by the CAG in October, 2013. That’s when KPCL did a complete flip flop and for the first time, raised a demand on KECML seeking reimbursement towards the value of the coal rejects, a decision that was successfully assailed by the appellants in the High Court and the challenge laid by KPCL to the said judgement was repelled by this Court.
Can KECML be blamed for not setting up the coal washery at the pithead? - HELD THAT:- The decision of KECML to enter into a MoU with GCWL for washing of coal was actuated by compelling circumstance faced by it and KPCL had taken a calibrated decision in its commercial wisdom to duly concur with the said decision knowing very well that non-supply of a specified grade of washed coal by KECML would have serious consequences of stoppage of generation of power at BTPS and a cascading effect of resulting in a power crisis in the State of Karnataka - It is not proposed to Labour much on the contention of the respondent-CBI that allocation of the coal block was in favour of KPCL and not in favour of KECML as stands adequately explained on a perusal of the Notification dated 16th July, 2024 which shows that the Central Government did recognize the fact that it was KECML who was required to supply coal from the coal mines allocated to KPCL and end use of the said coal was specified for generation of Thermal Power Station at Bellary, Karnataka. Having regard to the aforesaid notification, nothing much turns on the submission made by the respondent-CBI that the coal block allocation was only in favour of KPCL and it ought to have a right over the rejects to the exclusion of KECML and others.
Did the coal rejects have any useful calorific value making it a saleable commodity? - HELD THAT:- The Detailed Washability Report of the Government Laboratory namely, CIMFR, Nagpur has been ignored by the respondent-CBI. It was the said Report that formed the basis of the information furnished by KECML with respect to production, stock, despatch of coal to the washery etc., as was demanded by the office of the Coal Controller, a department that falls under the MoC. The said Report stated in so many words that the rejects did not contain any useful c.v. Reliance placed by the respondent-CBI on the revised Mining Plan submitted by the appellants to the MoC in 2010, that mentions a new technology for utilization of rejects for its carbon value, namely FBC is of no consequence as the said technology had not even been introduced when MoC approved the original Mining Plan, submitted by KECML in the year 2004. Even otherwise, it is not in dispute that for applying the said technology, a plant was required to be established after obtaining necessary approvals from several agencies. The plant could not be established by KECML for the reason that the revised Mining Plan submitted by it was approved by the MoC only on 24th August, 2011. Consequent steps that were required to be taken by KECML for obtaining necessary approvals from the MoEF&CC and other govt. agencies came to a grinding halt when an order was passed by this Court in the year 2014, deallocating all captive coal blocks, including those allocated to KPCL. Therefore, any reference by the respondent-CBI to the revised Mining Plan is of no consequence.
Persuasive Value of the case KARNATAKA POWER CORPORATION LIMITED VERSUS ARYAN ENERGY PRIVATE LIMITED AND ORS. [2021 (7) TMI 1459 - KARNATAKA HIGH COURT] - HELD THAT:- On going through the agreements executed between KPCL and Aryan Energy, the High Court had shot down the plea of KPCL that it was entitled to the coal rejects. Though KPCL assailed the said decision before this Court, it settled its dispute with Aryan Energy and the appeals preferred by it were disposed of as compromised. The contention of the respondent-CBI that the order of the High Court of Karnataka is not relevant for the present case since there was no criminal case registered therein, cannot be a distinguishing feature when the terms and conditions of the contract between KPCL and Aryan Energy on the aspect of disposal of the coal rejects is pari materia. It is opined that the judgment in the case of Aryan Energy does have persuasive value.
Inherent Jurisdiction of the High Court under Section 482, Cr.P.C - HELD THAT:- Section 482 Cr.P.C recognizes the inherent powers of the High Court to quash initiation of prosecution against the accused to pass such orders as may be considered necessary to give effect to any order under the Cr.P.C or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is a statutory power vested in the High Court to quash such criminal proceedings that would dislodge the charges levelled against the accused and based on the material produced, lead to a firm opinion that the assertions contained in the charges levelled by the prosecution deserve to be overruled.
While exercising the powers vested in the High Court under Section 482, Cr.P.C, whether at the stage of issuing process or at the stage of committal or even at the stage of framing of charges, which are all stages that are prior to commencement of the actual trial, the test to be applied is that the Court must be fully satisfied that the material produced by the accused would lead to a conclusion that their defence is based on sound, reasonable and indubitable facts. The material relied on by the accused should also be such that would persuade a reasonable person to dismiss the accusations levelled against them as false.
Extraordinary powers of the Supreme Court under Article 136 of the Constitution of India - HELD THAT:- Article 136 can be invoked by a party in a petition for special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by a Court or Tribunal within the territory of India. The reach of the extraordinary powers vested in this Court under Article 136 of the Constitution of India is boundless. Such unbridled powers have been vested in Court, not just to prevent the abuse of the process of any court or to secure the ends of justice as contemplated in Section 482, Cr.P.C, but to ensure dispensation of justice, correct errors of law, safeguard fundamental rights, exercise judicial review, resolve conflicting decisions, inject consistency in the legal system by settling precedents and for myriad other to undo injustice, wherever noticed and promote the cause of justice at every level. The fetters on this power are self imposed and carefully tampered with sound judicial discretion.
Given the broad amplitude of the extraordinary powers of this Court under Article 136 of the Constitution of India, the respondent-CBI cannot be heard to urge that since a Chargesheet has already been filed against the appellants and charges framed, the appellants should be left to take all the pleas available to them before the learned Special Judge, CBI during the course of the trial and that no interference is called for by this Court at this stage. Such an approach does not commend itself to this Court in the facts and circumstances of this case.
Application of mind at the stage of Section 227, CrPC - HELD THAT:- There is no quarrel with the broad proposition canvassed by learned counsel for the respondent- CBI that at the stage of Section 227, Cr.P.C., the Special Judge, CBI had to sift the evidence to find out whether there was sufficient ground for proceedings against the appellants. That exercise would include taking a prima facie view on the nature of the evidence recorded by the CBI and the documents placed before the court so as to frame any charge. At the same time, one must be mindful of the language used in Section 227 of the Cr.P.C - As observed in Prafulla Kumar Samal [1978 (11) TMI 151 - SUPREME COURT] the expression “not sufficient ground for proceeding against the accused” clearly shows that the Judge is not a mere post office to frame the charge at the behest of the prosecution. The Judge must exercise the judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution - the CBI at the time of considering the records/documents submitted by the respondent-CBI and the material produced by the appellants.
Conclusion - Though multiple arguments have been advanced by learned counsel for the appellants to assail the impugned orders passed by the learned Special Judge, CBI, including a plea that no offence is made out under Section 13(1)(d) of the P.C. Act for various reasons, this Court has consciously elected to confine itself only to those aspects that in our opinion, would be sufficient to arrive at a prima facie view that the allegations levelled against the appellants have pre-dominant contours of a dispute of a civil nature, does not have the makings of a criminal offence and on an overall conspectus of the case, would persuade any reasonable person to dismiss the accusations levelled. Therefore, this court declines to go into the nitty gritties of the documents/evidence, or the contrasting data produced by the parties to test their probative value.
The respondent–CBI embarked on a roving and fishing inquiry on the strength of the Audit Report of the CAG and then started working backwards to sniff out criminal intent against the appellants. The underpinnings of what was a civil dispute premised on a contract between the parties, breach whereof could at best lead to determination of the contract or even the underlying lease deed, has been painted with the brush of criminality without any justification - the impugned orders deserve interference in exercise of the powers vested in this court under Article 136 of the Constitution of India.
The order on charge dated 24th December, 2021 and the order framing charges dated 3rd March, 2022 passed by the learned Special Judge, CBI qua the appellants before this Court are unsustainable and accordingly quashed and set aside - Appeal allowed.
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2024 (9) TMI 56
Dishonour of Cheque - seeking issuance of warrant of attachment and initiating contempt proceedings against the respondent/accused for willful default and breach of settlement order and undertaking - amicable settlement through mediation - Section 421 read with Section 431 Cr.P.C. - HELD THAT:- In Dayawati vs Yogesh Kumar Gosain [2017 (10) TMI 1063 - DELHI HIGH COURT], the issue regarding legal permissibility of referring a complaint case under Section 138 NI Act for amicable settlement through mediation, procedure to be followed upon settlement and the legal implications of breach of mediation settlement were considered - it was observed in Dayawati vs Yogesh Kumar Gosain that the Court would record the statement of the parties or their authorized agents on oath affirming the settlement, its voluntariness and undertaking to abide by it, followed by an appropriate order accepting the agreement. Further, the Court taking on record the settlement stands empowered to make consequential directions, if required.
There is no bar that unless the matter is forwarded to mediation for settlement, the same cannot be entered before the Court itself. The Court only needs to be satisfied that the settlement is lawful and consent of the parties is voluntary and not obtained under coercion or undue influence - Even when the Court permits the compounding of an offence, which is permissible under NI Act, there is no bar that the Court cannot compound the offence without forwarding the matter to mediation. When the matter is not forwarded to mediation but the Court records the settlement or compounds the offence, it is obvious that the proposal receives ‘imprimatur’ or authoritative approval of Court.
In the facts and circumstances, there does not appear to be any reason to presume that the settlement was “not voluntary” or under any force, pressure or coercion. The fact that the respondent had come with a DD dated 06.11.2020, which was handed over to the petitioner/complainant on 09.11.2020 reflects that he had already made up his mind to settle the issues. Once the said settlement was accepted by the petitioner and also received ‘imprimatur’ of the Court, there does not appear to be any reason for the Court to arrive at a contrary conclusion vide impugned order dated 19.12.2020 that there was no effective settlement bringing criminal proceedings to an end. The settlement was legal and voluntary without any force, pressure or coercion. The proceedings after settlement between the parties vide order dated 09.11.2020 were only for the purpose of ensuring the compliance of settlement by the parties.
This Court is of the considered opinion that once a valid settlement stood recorded, the consequences of the same are bound to ensue and as such, on default or non-compliance or breach of settlement, learned MM is bound to pass an order under Section 421 read with Section 431 Cr.P.C. to recover the amount agreed to be paid by the respondent/accused in the same manner, as a fine would be recovered as held in Dayawati vs Yogesh Kumar Gosain.
The impugned order dated 19.12.2020 passed by learned MM is set aside. The settlement between the parties in terms of order dated 09.11.2020 is binding. Accordingly, application under Section 421 read with Section 431 Cr.P.C. shall be considered by the learned Trial Court in accordance with law - petition disposed off.
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2024 (8) TMI 1479
Infringement of copyright - Interpretation and application of Section 52(1)(za) of the Copyright Act - Jurisdiction of the State Government to issue Circular dated 30.01.2024 - HELD THAT:- A careful perusal of the relevant provisions of the Copyright Act indicates that for infringement of the copyright or for violation of the rights under the Copyright Act, there are remedies provided apart from the safeguards prescribed for the protection of the rights of the copyright owners. The Act provides for civil remedies and makes the violations offence punishable under the Act. The consequences of breach are provided. The object of the Act is to protect the author of the copyright work from an unlawful reproduction or exploitation of his work by others. The whole essence of a copyright is a right to stop others from exploiting the work without the consent or assent of the owner of the copyright - the copyright law presents a balance between the interests and rights of the author and that of the public in protecting the public domain, or to claim the copyright and protect it under the copyright statute. It is important to bear in mind that the issue of copyright is closely connected to that of commercial viability, commercial consequences and implications.
The impugned Circular dated 30.01.2024 relies upon a public notice dated 24.07.2023 issued by the Ministry of Commerce and Industry. The public notice dated 24.07.2023 after referring to Section 52(1)(za) directs the Copyright Society to refrain from entering into acts which are in contravention to Section 52(1)(za) in order to avoid any legal action. Also, the general public is thereby cautioned not to accede to any uncalled demands from any individual/organization/copyright society which are in violation of Section 52(1)(za) of Copyright Act 1957.
The impugned Circular after referring to the Public Notice of Government of India dated 24.07.2023 says that insisting upon such permission/NOCs from the copyright societies is in violation of Section 52(1)(za) of the Copyright Act adversely affecting not only the citizens but also the economic/tourism activities in the State. It goes to clarify that no hotel or any copyright society shall insist upon any permission/NOCs for performance of musical works or other musical recordings for religious ceremonies/festivals including wedding/marriage events and other social festivities associated with marriage - The circular in expanding the scope of Section 52(1)(za) is bound to have consequences disturbing the balance which the Copyright Act seeks to achieve between the interest of the rights of the author/owner of the copyright and those claiming protection of Section 52(1)(za). As to what shall not constitute infringement of copyright is provided by Section 52(1)(za).
It is not possible to accept the submission of the learned Additional Government Advocate that the Circular to the extent the same is in consonance with the provisions of Section 52(1)(za) be saved. The Circular will have to be read as a whole considering the overall tenor. The Circular warrants interference in the exercise of writ jurisdiction of this Court under Article 226 of the Constitution of India.
There are no hesitation in holding that the impugned Circular is in the teeth of the provisions of the Copyright Act and therefore, the petitions must succeed. The impugned Circular dated 30.01.2024 issued by respondent No. 1 is quashed and set aside - petition allowed.
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2024 (8) TMI 1467
Seeking writ of mandamus/ appropriate directions to Respondent No. 1 - Union of India1 to furnish a status report on the complaints/ representations filed by the Petitioner - invocation of Article 226 of the Constitution of India, 1950 - HELD THAT:- Regardless, for this Court to exercise writ jurisdiction under Article 226 of the Constitution of India, the Petitioner must demonstrate that they have an enforceable constitutional right against the Respondents. The Court is unable to ascertain any such right from the facts presented.
The matter be listed before the Roster Bench dealing with public interest litigation. It is made clear that this Court has not made any comments on the merits of the case or whether there is any element of public interest involved in the present proceedings.
Subject to orders of Hon’ble the Acting Chief Justice, list this matter before the Roster Bench on 26th September, 2024.
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2024 (8) TMI 1393
Existence of valid mortgage entitling appellant to sue for a mortgage decree or not - HELD THAT:- Quite evidently, the Division Bench did not account for Section 58(f) of the Act. Indubitably, the respondent pleaded threat and coercion whilst executing/signing the Agreement, yet having accepted that he did sign the same in his own hand, the burden was on him to prove such threat/coercion. Looked at from any angle, the First Impugned Order suffers from legal errors, and cannot withstand the scrutiny of law.
How and why the appellant went into slumber? - HELD THAT:- A ‘fantastic’ plea was taken that the appellant had engaged a counsel only for the delay condonation MP and not to argue the main appeal. Such a contention is noted only for the purpose of outright rejection. This ‘fantastic’ plea has been dealt with correctly by the Division Bench and no legal infirmity can be found therein.
It is already indicated that the First Impugned Order has to be set aside. In order to do justice, quashing of the First Impugned Order would necessarily mean that the effect of the Second Impugned Order would get nullified, for all practical purposes, despite this Court being of the view that on its own merits, the Second Impugned Order cannot be faulted. However, for such legal misadventure resulting in wastage of precious judicial time of the High Court, which could have been better spent answering the call of justice raised by the teeming millions, we impose costs of Rs.1,20,000/- on the appellant. Such cost shall be deposited within 6 weeks with the Registry of the High Court, to be utilised as follows:
i. Rs.40,000 for juvenile welfare in a manner to be decided by the Juvenile Justice Monitoring Committee;
ii. Rs.40,000 for welfare of the Advocate-Clerks in a manner to be decided by Hon’ble the Acting Chief Justice, and;
iii. Rs.40,000 for legal aid in a manner to be decided by the High Court Legal Services Committee.
Appeal allowed.
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