Maintainability of the complaint of the respondent-claimant on the plea that it is not a consumer under the Consumer Protection Act, 2019 or not - deficiency in service or unfair trade practice on part of the appellant in the matter of allotment of the flat in question in favour of the respondent and in its cancellation resulting in the forfeiture of the amount deposited.
Maintainability of the complaint of the respondent-claimant on the plea that it is not a consumer - HELD THAT:- The issue is no longer res integra. It is more or less covered by the two decisions which have been relied upon by the NCDRC. In LILAVATI KIRTILAL MEHTA MEDICAL TRUST VERSUS M/S. UNIQUE SHANTI DEVELOPERS & ORS. [2019 (11) TMI 1824 - SUPREME COURT], the Medical Trust that had purchased houses for the nurses was held to be a ‘consumer’ under the Act and its action in purchasing the houses was not held to be a commercial activity. In CROMPTON GREAVES LIMITED AND ORS. VERSUS DAIMLER CHRYSLER INDIA PRIVATE LIMITED AND ORS. [2016 (7) TMI 1700 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI], the services availed for the personal use of the director of the company were not held to be for commercial purposes.
In the case at hand, the complainant specifically mentions that the flat was being purchased for the purpose of residence of one of its Directors and his family and that the company is a family owned company. The mere fact that the respondent-company is a real estate company, it does not mean that the flat was purchased by it for commercial purpose or for resale so as to earn profits. It is the appellant who is contending that the respondent is not a consumer and as such the complaint is not maintainable, therefore, the burden lies heavily upon it to lead evidence to prove that the respondent in purchasing the flat in question is indulging in real estate business. There is no evidence on record to show that the flat so purchased by the respondent was in any way connected with the real estate business rather than for personal use of its Director and his family.
There are no error or illegality in the finding of the NCDRC that the purchase of the aforesaid flat was for personal use and not as part of the commercial activity and as such the complaint filed by the respondent was maintainable.
Deficiency in service or unfair trade practice on part of the appellant in the matter of allotment of the flat in question in favour of the respondent and in its cancellation resulting in the forfeiture of the amount deposited - HELD THAT:- The appellant instead of refunding the amount deposited by the respondents, forfeited the same vide letter dated 18.11.2017. Since the very cancellation/ termination of the allotment of the respondents in the facts and circumstances of the case is not justified, consequently the forfeiture is also bad in law. The NCDRC upon consideration of the above facts and circumstances, irrespective of the fact that the appellant may have the power to advance the date of delivery of possession of the flat allotted or offer possession on the basis of part occupancy certificate, rightly held that the appellant was guilty of adopting unfair trade practice and since there was double allotment of the flat, there was deficiency in service.
Thus, the complaint of the respondents was maintainable and that since the services rendered by the appellant were held to be deficient. It has thus rightly issued directions to refund the forfeited amount of Rs. 7,16,41,493/- along with the delay compensation @ 6% per annum from the date of deposit till refund within two months, failing which the interest would be payable @ 9% per annum.
The appellant is directed to refund a sum of Rs. 3,00,00,000/- (Rupees Three Crore only) out of the total amount, as directed to be refunded, within a period of two weeks from today and the balance be refunded on or before 31st December, 2024 either in lump sum or in piecemeal, failing which it will be open for the Collector concerned to recover the entire amount as arrears of land revenue.
Dishonour of Cheque - compounding of offence u/s 138, N.I. Act - core contention of the appellant is that an offence under Section 138 of the N.I. Act is not compoundable under Section 320 Cr.P.C., and in such circumstances, the application was rightly dismissed by the Trial Court. Ergo, invoking the power under Section 482 Cr.P.C., coupled with those under Section 147, N.I. Act - HELD THAT:- A bare perusal of Section 482, Cr.P.C., and Section 147, N.I. Act would reveal they are different and distinct. The former being the inherent power of High Court exercisable even suo motu to give effect to any order under Cr.P.C., or to prevent abuse of the process of any court or otherwise to secure the ends of justice. However, the provision for compounding every offence punishable under the N.I. Act, under Section 147, N.I. Act, is not a power available to a Court to exercise without the consent of the complainant.
It is thus well-neigh settled position that the inherent powers under Section 482, Cr.P.C., are invocable when no other efficacious remedy is available to the party concerned and not where a specific remedy is provided by the statute concerned.
The High Court had clearly fallen in error in invoking the power under Section 482, Cr.P.C., as also the power under Section 147, N.I. Act, to compound the offence under Section 138 of the N.I. Act qua the respondent-accused. Hence, the impugned judgment to the extent it compounded the offence under Section 138, N.I. Act invoking the inherent power under Section 482, Cr.P.C. and the power under Section 147, N.I. Act stands quashed and set aside.
There is no point in restoring the proceedings and to permit their continuance before the trial Court - Appeal disposed off.
Dishonour of Cheque - existence of legally payable debut supporting the cheque or not - main contention of the revisionist is that the Revisionists has claimed that only a sum of Rs. 1,03,660/- had been paid by the complainant while the cheque amount has been claimed to be Rs. 2,40,000/- which was taken by the Complainant under duress - HELD THAT:- In M/S. KUMAR EXPORTS VERSUS M/S. SHARMA CARPETS [2008 (12) TMI 682 - SUPREME COURT], the Apex Court had observed that the accused in a trial under Section 138 of the Act has two options viz. either to prove that the consideration/debt did not exist or that under the facts and circumstances of the case the non-existence of consideration and debt was so probable that no prudent person would suppose that there was a consideration or the debt that existed.
Similar observations had been made in MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. [2006 (7) TMI 576 - SUPREME COURT], wherein the Apex Court had observed that the standard of proof is preponderance of probabilities and such an inference can be drawn not only from the material on record, but also with reference to the circumstances upon which the parties reply. The standard of reasonability is that of a prudent man.
Before this Court as well, the Revisionists have not been able to agitate any ground creating a doubt in the case of the complainant about the manner in which the cheque had been issued by the Revisionists in discharge of their existing liability. It would not be out of place to observe that admittedly the cost of tour per person was Rs. 1,20,000/- which explains why Rs. 2,40,000/- were paid to the Revisionists, in respect of which the cheque was issued on account of the tour having been cancelled - the Ld. MM and Ld. ASJ have rightly observed that the Revisionist failed to rebut the presumption under Section 139 and held that the cheque had been duly issued by Bhavna Chopra for and on behalf of the Revisionist Firm, in discharge of the Legal Liability.
The second aspect agitated by the Revisionists is that Amit Chopra had no concern with the cheque in question. However, it is not in dispute that M/s A & B Tour & Travels was a partnership Firm of which both the Revisionists were partners. The cheque had been issued by Bhavna Chopra as one of the partners of the Firm; the liability being of the Firm - Since the cheque was issued for and on behalf of the Firm of which both the Revisionists are admittedly the partners, Amit Chopra cannot avoid his liability.
The third ground on which the impugned judgment has been challenged is that no valid Cheque Return Memo has been produced by the complainant. The perusal of the record shows that the cheque in question Ex.CW1/A dated 13.03.2014 got deposited in ICICI Bank by pay-in slip dated 11.06.2014 Ex.CW1/B. The cheque got rejected vide Rejection Memo Ex.CW1/C. It is correct that the said Rejection Memo neither mentions the cheque number nor the date, but it bears the stamp of the ICICI Bank. It is but natural that if the cheque got deposited on 11.06.2014, the dishonour had to be subsequent to it.
The fourth aspect agitated on behalf of the Revisionists is that in the absence of the date of service of Legal Notice, it cannot be said that the complaint has been filed within the time frame as provided under Section 138 N.I Act.
Thus, it is held that there is no jurisdictional error in the judgment of the learned ASJ in upholding the conviction of the Revisionist under Section 138 of N.I. Act. Learned ASJ has already taken a lenient view by reducing the compensation amount to Rs. 4 lakhs and sentencing them to only a default sentence of three months in case of payment of compensation not been made within one month.
There is no merit in the present Revision which is hereby dismissed.
The High Court of Allahabad allowed the withdrawal application in Civil Misc. Withdrawal Application No. 5 of 2024. The writ petition was dismissed as withdrawn. The State had no objection to the withdrawal. The order on the petition was dismissed as withdrawn.
Restrictive scope of appellate jurisdiction under Section 125 of the Electricity Act, 2003 - Applicability of the force majeure clause - Whether the extension of the Scheduled Commissioning Date was occasioned under the force majeure clause of the Power Purchase Agreement? - whether the reduction in tariff payable to the respondents is justified.
HELD THAT:-The law on force majeure, specifically in the context of PPAs, has been comprehensively dealt with by this Court in Energy Watchdog v. Central Electricity Regulatory Commission [2017 (4) TMI 1385 - SUPREME COURT]. The Court delved into contractual jurisprudence on force majeure clauses and frustration of contracts. It held that Sections 32 and 56 of the Indian Contract Act, 1872 govern the law on force majeure. When the contract contains an express or implied force majeure clause, it is governed under Chapter III of the Contract Act, specifically Section 32. In such cases, the ‘doctrine of frustration’ in Section 56 does not apply and the court must interpret the force majeure clause contained in the contract. It held that a force majeure clause must be narrowly construed.
The entire dispute before the KERC and the APTEL revolves on a question of fact – whether the respondents were negligent or not diligent in securing approvals and hence, is the delay in commissioning attributable to them. The KERC’s appreciation of the evidence has led it to the conclusion that the delay in commissioning was due to the respondents’ delay in making the applications, despite the approval of the PPA. However, the APTEL has taken note of certain additional factors affecting the time taken to secure the approvals that were not considered by the KERC. These include the time taken by the government to provide the PTCL that is required for approval of land conversion, and the delay caused by the authority in evacuation approval - there is no error in the APTEL’s approach, and it is reasonable in its reappreciation of evidence.
The delay is not attributable to the respondents and that the force majeure clause is applicable, it rightly held that the extension of time under Article 2.5 is warranted and the commissioning of the project on 24.08.2017 is within the extended period of 24 months. Consequently, the APTEL also rightly held that there is no occasion for the imposition of liquidated damages under Articles 2.2 and 2.5.7 or for the reduction of tariff under Article 5.1 of the PPA - The APTEL has primarily decided a question of fact as to the attributability of the delay, and from the above, it is clear that the APTEL’s findings are neither illegal nor unreasonable. There are no reason to interfere with the same.
Seeking release of export subsidy of Rs. 8,08,50,000/- - Respondent No. 2 submitted a report confirming that the Milk Powder exported by the Petitioner, i.e., 1617 metric tonnes, is out of the stock which was in existence on 30th June 2018 and hence the Petitioner was entitled to receive the export subsidy under the Government Resolution dated 31st July 2018 - HELD THAT:- It is observed that once a party like Indapur, who was similarly placed like the Petitioner, was in receipt of such subsidy, which is certainly in the nature of a State largesse, all attributes of reasonableness and fairness emanating from Article 14 of the Constitution of India would stare at the Respondents in similar treatment to be meted out to a person like the Petitioner who was identically placed. A different treatment being meted to the Petitioner would result in breach of the basic rights of the Petitioner of non-discrimination guaranteed to the Petitioner under Article 14 of the Constitution. The subsidy scheme in question is a welfare scheme and which was fully implemented and acted upon in the case of Indapur. Thus, no technical argument would prevent this Court from recognizing such Constitutional rights as conferred on the Petitioner as also recognized by the Scheme.
So far as the judgements of the Supreme Court in the case of M/S. VISHAL PROPERTIES PVT. LTD. VERSUS STATE OF U.P. & ORS [2007 (10) TMI 647 - SUPREME COURT] relied upon by the Respondents in the context of negative equality are concerned, they lay down the proposition that Article 14 is not meant to perpetuate an illegality. They further lay down that Article 14 provides for positive equality and not negative equality and the Courts are not bound to direct any authority to repeat any wrong action done by it earlier.
There can be no dispute about the proposition of law laid down in these judgements. However, these two judgements are squarely distinguishable on facts in the present case. In the present case, on identical facts, this Court has directed release of payment of Export Subsidy to Indapur. This Court has done so on the basis that Indapur was legally entitled to the same and that there was no illegality involved in making payment of the said Export Subsidy to Indapur. Therefore, the question, of any illegality or negative equality, does not arise in the present case.
Thus, this Court has directed release of payment of export subsidy to Indapur on the basis that Indapur was legally entitled to the same.
The Respondents are directed to release in favour of the Petitioner the export subsidy amount of Rs.8,08,50,000/- within a period of six weeks from the date of this order - petition allowed.
Seizure of huge quantity of fake Indian currency notes of Rs. 500/- denomination and the nature of the currency notes - ingredients under Section 489B of the Indian Penal Code present or not - HELD THAT:- In the case of HODA SK. VERSUS STATE OF WEST BENGAL [2020 (1) TMI 1695 - CALCUTTA HIGH COURT], the Hon’ble Division Bench of this court on an interpretation of the facts of the case in the background of the word ‘possessing’ as used in the charge framed under Section 489B by the learned trial Court was displeased with the language as used in the charge and, as such, decided to acquit the appellant under Section 489B of the IPC. Although, it upheld the conviction under Section 489C of the IPC.
In the case of DOLON SK. AND ORS. VERSUS STATE OF WEST BENGAL [2022 (2) TMI 1461 - CALCUTTA HIGH COURT], the Hon’ble Division Bench took into account the words ‘traffic’ and ‘otherwise trafficking in’ and compared the same with the charges which were framed therein, thereby, acquitting the appellant under Section 489B of the IPC and sentenced him to suffer imprisonment for the offence under Section 489C of the IPC.
Here, it would be apposite to rely upon the findings of the Hon’ble Division Bench in the judgment of JUBEDA CHITRAKAR VERSUS STATE OF WEST BENGAL [2019 (11) TMI 1836 - CALCUTTA HIGH COURT], wherein while interpreting Section 489B of the IPC relying upon the judgment of Gujrat High Court as well as the Madhya Pradesh High Court, it was held that when an accused person is carrying sizeable quantity of fake currency notes on a public road or otherwise in a concealed manner, it would amount to active transportation of such currency notes at the time when the accused person is apprehended. As such, while no explanation is offered by the accused, when questioned, under Section 313 of the Code of Criminal Procedure. regarding the possession of the fake currency note, the burden of proof of facts within the knowledge of the person which is to be discharged in terms of Section 106 of the Evidence Act – calls for an explanation.
It is found from the factual circumstances that the appellant was at a public place being Dhuliyan Ferry Ghat, where he was found to be in possession of 71 pieces of FICN of Rs. 500/- denomination which were recovered from his waist.
The burden of proof at this stage is upon the appellant to divulge regarding his personal knowledge or information relating to the manner he at least received the FICN. The concept of trafficking is not the only concept under Section 489B IPC. There are other terms which are also embedded in the said Section being ‘sells to, or ‘buys’ or ‘receives from, any other person’ - As such the appellant had ample scope to explain as to how he obtained the FICN. The learned trial court in the charge has used the term ‘you brought and for circulating’. The said two phrases is enough to cover the meaning and interpretation as also the spirit incorporated under Section 489B IPC as there is no hard and fast rule that in the contents of charge, the specific words of the Section is to be used.
Having considered that the incident is of the year 2013 and the appellant has already suffered almost 12 months in custody during the stage of investigation, trial and during the pendency of the appeal, the sentence of seven years so imposed in respect of the offence charged under Section 489B of the Indian Penal Code be reduced to five years of rigorous imprisonment and fine of Rs.10,000/-. The sentence in respect of Section 489C of the Indian Penal Code is also modified to a period of three years with fine of Rs.5000/-.
The appellant is on bail. As such his bail bonds are cancelled. The appellant is directed to surrender before the learned trial court immediately - Appeal allowed in part by modifying the sentence without interfering with the order of conviction.
Legality of the High Court's order granting bail to respondent no.1 - High Court vide the Impugned Order has released him on bail noting that the material on record is not sufficient to establish his complicity - HELD THAT:- The High Court, there are no hesitation in saying so, erred in law. Ergo, for reasons recorded above and upon circumspect consideration of the attendant facts and circumstances, we hold that the discretion exercised by the learned Single Judge of the High Court to grant bail to the respondent no.1 was not in tune with the principles that conventionally govern exercise of such power, a plurality of which stand enunciated in the case-law supra. Moreover, though respondent no.1 had already suffered incarceration for a period of about six months at the time when bail was granted, yet in view of the nature of the alleged offence, his release on bail can seriously lead to dissipation of the properties where investments have allegedly been made out of Society funds. At the end of the day, the interests of the victims of the scam have also to be factored in.
The impugned order stands set aside. Respondent No.1 is directed to surrender within a period of three weeks from today, failing which the trial Court shall proceed in accordance with law - appeal allowed.
Shifting and demolition of the school by DSGMC - whether the appellant-DSGMC has any valid ground so as to assail the impugned judgment of the High Court dated 9th December, 2009, whereby the NDMC was directed to reimburse the pay and perquisites including the pension and other benefits accruing to the staff of the school and “then to recover the same from the appellant-DSGMC”? - HELD THAT:- Admittedly, the school in question being run by the appellant-DSGMC was receiving 95% grant from NDMC, and the same was closed down without due approval of the Director (Education), NDMC. As a consequence, the appellant-DSGMC cannot be allowed to take the shield of Rule 47 of the Delhi Education Rules so as to claim that the burden of re-employment and payment of salaries of the surplus teachers and the nonteaching staff upon closure of the school would be that of the NDMC. The question of absorption only arises when the closure of the school is done in accordance with law, which requires a full justification and prior approval of the Director as per Rule 46 supra. Since the closure of the school in question was undertaken de hors Rule 46, the argument advanced on behalf of the appellant- DSGMC that the onus to absorb the surplus teaching and nonteaching staff would be that of the NDMC, has no legal sanction and cannot be sustained.
There are no merit in Civil Appeal preferred by the appellant-DSGMC, which are hereby dismissed.
Seeking reimbursement of the entire amount from the DSGMC to staff - HELD THAT:- Since the principal amount has already been paid by the appellant-NDMC, there is no reason for this Court to interfere with the direction given by the Delhi High Court for payment of interest to the respondents, i.e., staff of the school, in terms of the impugned judgment - it is directed that appellant-NDMC shall pay all remaining dues including interest to the respondents-staff of the school, within a period of eight weeks from today - It is clarified and reiterated that the appellant-NDMC shall be entitled to take recourse of the appropriate remedy for reimbursement of the amounts paid to respondents-staff of the school from the DSGMC, in case the DSGMC voluntarily fails to reimburse the said amount.
Dishonour of cheque - seeking quashing of summoning order and complaint under Section 138 read with Sections 141 and 142 of the NI Act - vicarious liability of a Director - HELD THAT:- There is unanimity in judicial opinion that necessary, specific and unambiguous averments ought to be made in a complaint under Section 138 of the NI Act, before the person accused of the offence is subjected to criminal prosecution and it is not enough to make a general and bald allegation that the person was in charge of the day to day affairs of the company. The least that is required is to ascribe a specific role to a person before any criminal liability can be fastened on him/her and from the complaint itself, a reasonable and plausible inference must be discernible that the person accused was in charge of and responsible to the firm for the conduct of its business, with a caveat that a hyper-technical approach should not be adopted in quashing the complaints since the laudable object is to prevent dishonour of cheques and sustain the credibility of commercial transactions, for which avowed purpose Legislature has enacted Sections 138 and 141 of the NI Act.
In SABITHA RAMAMURTHY & ANR. VERSUS RBS. CHANNABASAVARADHYA [2006 (9) TMI 490 - SUPREME COURT] the Supreme Court restated the requirements of Section 141 of the NI Act and held that the complainant must make a clear statement of fact to enable the Court to arrive at a prima facie opinion, even if the allegations are that the accused is vicariously liable. Section 141 of the NI Act raises a legal fiction where a person although not personally liable for commission of an offence, would be vicariously liable but before a person can be made vicariously liable, strict compliance with statutory requirements is to be insisted.
Coming to the facts of the present case, perusal of Form No. DIR-12 of the accused company BTIL reflects that Petitioners No. 1 and 3 were Independent Non-Executive Directors while Petitioner No. 2 was Non-Executive Director at the time of commission of the alleged offence. In view of Section 141 of NI Act and Section 149 of Companies Act, 2013, Petitioners could be held vicariously liable only if it was shown that they were in charge of and responsible for the conduct of the business of the company at the time of commission of offence and not otherwise and complainant was required to specifically aver in the complaint as to how the Petitioners were in charge of day to day affairs of the company BTIL as well as conduct of its business, as per settled law - There are no allegations that Petitioners had any role in the dishonour of the cheque on presentation and admittedly, Petitioners were not the signatories.
It is settled that Section 141 is a penal provision creating vicarious liability and must be strictly construed and therefore, bald cursory statements in the complaint in the absence of a specific role being ascribed to a Director and without spelling out how and in what manner the accused were in charge of or responsible to the accused company for the conduct of its business, vicarious liability cannot be fastened. It is also settled that it is not enough to state in the complaint that a particular person was a Director, Managing Director, CEO, etc. As held by the Supreme Court in S.M.S. Pharmaceuticals [2005 (9) TMI 304 - SUPREME COURT] it may be that in a given case, a person may be a Director but may know nothing about the day to day functioning of the company and there is no universal rule that a Director is in charge of its everyday affairs.
Sections 138 and 141 of the NI Act were introduced in the Act to encourage the wider use of a cheque and to enhance the credibility of the instrument. The intent of the Legislature in carrying out the amendment was to encourage people to have faith in the efficacy of banking transactions and use of cheques as negotiable instruments. To balance, a penal provision was enacted to ensure that the drawer of a cheque does not misuse the provisions and honours his commitment. The issue herein concerns the criminal liability arising out of dishonour of a cheque. Normally, the criminal liability is not vicarious i.e. one cannot be held criminally liable for the act of another. Section 141 of NI Act is, however, an exception where the offence under Section 138 is committed by a Company but the liability extends to the officers of the Company, subject to fulfilment of the conditions under Section 141, as a caveat - The present complaint fails to pass muster and basis the same, no criminal liability can be fastened on the Petitioners.
Since the contents and averments in the complaint are insufficient to attract the provisions under Section 141 (1) of NI Act, the impugned order dated 14.12.2017 passed by learned MM (NI Act), Patiala House Courts, New Delhi, in CC No. 16632/2017 is set-aside to the extent of issuing summons to the present Petitioners for alleged commission of the offence punishable under Section 138 of Negotiable Instruments Act, 1881.
Criminal breach of trust - Quashing of summoning order - offence punishable under Sections 406, 420 & 120B respectively of the Indian Penal Code, 1860 - Vicarious liability of the office bearers - non-application of mind -HELD THAT:- The impugned order passed by the High Court is a fine specimen of total nonapplication of mind. Although the complaint was filed for the offence punishable under Sections 406, 420 and 120B respectively of the IPC yet the Additional Chief Judicial Magistrate thought fit to take cognizance and issue process only for the offence of criminal breach of trust as defined under Section 405 of the IPC and made punishable under Section 406 of the IPC - even if the entire case of the complainant is accepted as true no offence worth the name is disclosed.
Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the CrPC, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the appellant Nos. 2 and 3 respectively herein who are none other than office bearers of the appellant No. 1 Company. When the appellant No. 1 is the Company and it is alleged that the company has committed the offence then there is no question of attributing vicarious liability to the office bearers of the Company so far as the offence of cheating or criminal breach of trust is concerned - Vicarious liability of the office bearers would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.
Every act of breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person may seek his remedy for damages in civil courts but, any breach of trust with a mens rea, gives rise to a criminal prosecution as well - The distinction between mere breach of contract and the offence of criminal breach of trust and cheating is a fine one. In case of cheating, the intention of the accused at the time of inducement should be looked into which may be judged by a subsequent conduct, but for this, the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction i.e. the time when the offence is said to have been committed.
There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of making a false or misleading representation i.e., since inception. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender fraudulently or dishonestly induces a person by deceiving him to deliver any property. In such a situation, both the offences cannot co-exist simultaneously.
There is no manner of any doubt whatsoever that in case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it.
The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police – to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.
The impugned order passed by the High Court is set aside so also the order passed by the Additional Chief Judicial Magistrate, Khurja, Bulandshahar taking cognizance upon the complaint - Appeal allowed.
Challenge to award under Section 34 of the Arbitration and Conciliation Act, 1996 - Arbitrator accepted the claim of loss on the ground of on-site establishment ‘as permissible’ to the extent of 3% of the contract amount by the Hudson’s formula for expenses of engineers, supervisors, etc. - interest claim.
HELD THAT:- The conclusion of the High Court, “that it appears that the bills were paid soon after they were prepared” or that, “in that case there could not have been any claim for interest” cannot qualify as grounds for interference under Section 37. Equally, the approach of the High Court in holding that the Arbitrator neither established nor discussed the questions posed by it is not a ground to set aside the Award. The reasoning of the Arbitrator is reflected in that portion of the Award extracted hereinabove and we see nothing perverse in it. Nor such conclusion is against our public policy. The scope of Section 37 is enunciated in many decisions of this Court, and we apply the principles laid down therein to the facts of the present case.
The judgment of the High Court in relation to claim no. 4 is set aside - the Award is restored and thereby the judgment of the District Court upheld the Award.
Interest claim - HELD THAT:- While pendente lite interest is a matter of procedural law, prereference interest is governed by substantive law. CENTRAL BANK OF INDIA VERSUS RAVINDRA [2001 (10) TMI 1065 - SUPREME COURT]. Therefore, the grant of pre-reference interest cannot be sourced solely in Section 31(7)(a) (which is a procedural law), but must be based on an agreement between the parties (express or implied), statutory provision (such as Section 3 of the Interest Act, 1978), or proof of mercantile usage - the High Court had no reason to interfere with the Arbitral Award with respect to grant of pre-reference interest, since the Contract between parties does not prohibit the same.
Seeking an appropriate Writ or Direction to the effect that the personal bonds and sureties executed by the petitioner registered at P.S. Sadar, District Gurugram, shall hold good for eleven other bail orders passed in his favour from the Courts of different States - Whether the petitioner entitled to the relief of treating the personal bond and one set of sureties already furnished as holding good for the other bail orders also?
HELD THAT:- From time immemorial, the principle has been that the excessive bail is no bail. To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand, what is given with the right. As to what is excessive will depend on the facts and circumstances of each case. In the present case, the petitioner is experiencing a genuine difficulty in finding multiple sureties. Sureties are essential to ensure the presence of the accused, released on bail. At the same time, where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the requirement of furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India.
An order which would protect the person’s fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate. As to what such an order should be, will again depend on the facts and circumstances of each case.
It is directed that for the FIRs pending in each of the States of Uttar Pradesh, Rajasthan, Punjab and Uttarakhand, in each State, the petitioner will furnish his personal bond for Rs. 50,000/- and furnish two sureties who shall execute the bond for Rs. 30,000/- each which shall hold good for all FIRs in the concerned State, for cases mentioned in the chart set out hereinabove. The same set of sureties is permitted to stand as surety in all the States. This direction will meet the ends of justice and will be proportionate and reasonable.
Sufficient ground to proceed as contemplated under Section 227 of the Criminal Procedure Code - whether the materials collected during investigation even if admitted for the sake of the arguments discloses commission of an offence under Section 306 and 420 of the Indian Penal Code?
HELD THAT:- It is true that additionally there is charge under Section 420 of the Indian Penal Code. The main offence is under Section 306 of the Indian Penal Code. If there is delivery of the property in pursuance to the cheating, it is punishable under Section 420 of the Indian Penal Code. There is an allegation that the Applicant induced the deceased to join her company. The deceased has given all his best for the progress of the Company. It will not fall under Section 420 of the Indian Penal Code, because there is no delivery of the property. The first informant in his supplementary statement has stated about issuance of the cheque after the incident. Cheque is of Rs. 4,50,000/- and cash of Rs. 41,83,000/-.
If the deceased is upset due to the decision of the Applicant, we cannot say that she has intentionally aided the deceased to commit suicide. A person may not like decision of another person. Ultimately whether to continue business or personal relation is choice of the parties. If other party may not like that decision and if he puts to an end to his life, it does not fall within the meaning of the intentionally aiding under Section 107 of the Indian Penal Code.
The learned trial Judge has failed to consider the provision of Section 107 of the Indian Penal Code. Learned Judge has failed to consider the absence relationship in between acts alleged and the consequence - Merely on account of the dispute, it cannot be said that it can be abetment. This Court has taken this view after perusing the statements and panchnamas on one hand and considering the ingredients of the Section 306 read with Section 107 of the Indian Penal Code on the other hand.
The Order dated 10/04/2015 passed by the Court of the Additional Sessions Judge, Greater Mumbai in Sessions Case No. 658 of 2014 is set aside - Applicant is discharged for an offence under Sections 306 and 420 of the Indian Penal Code - Revision application is allowed.
Challenge to order passed by the Ministry of Labour, Government of India by which the appropriate Government has refused to make reference for settlement of dispute arose between the parties - HELD THAT:- Several grounds were raised by the petitioner including non-compliance of the provisions contained under Section 25G of the Act of 1947, while terminating the services of the petitioner. Reply to the aforesaid application was submitted by the respondents and an objection was taken therein that the petitioner had hardly worked for only 85 days with the respondents, hence, under these circumstances, none of the provisions of the Act of 1947 were attracted and no dispute arose between the parties, which was required to be adjudicated by the Labour Court by making a reference.
Considering the application filed by the petitioner and reply submitted by the respondents, the competent authority refused to make reference only on a technical count that the petitioner has worked for 85 days only and he could not substantiate his claim for further employment with any documentary evidence.
Whether under these circumstances, the order passed by the authority dated 05.07.2010 is legally sustainable in the eye of law or not? - HELD THAT:- In the case of Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and Others [1989 (4) TMI 342 - SUPREME COURT], the Hon’ble Apex Court had held that though while considering the question of making reference under section 10(1) of the Act of 1947, the Government is entitled to form an opinion as to whether an industrial dispute “exists or is apprehended”, but it is not entitled to adjudicate the dispute itself on its merits. While exercising power under Section 10(1) of the Act of 1947, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function. It, therefore, cannot delve into the merits of the dispute and take upon itself the determination of the lis.
The impugned order dated 05.07.2010 stands quashed and set aside. The matter is remitted to the appropriate Government for making reference of the dispute - Petition disposed off.
Prosecution for the offences punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 - illegal transport of pentazocine, a psychotropic substance, from Hajipur to Lucknow by train for being sold in the market as an intoxicating item - HELD THAT:- In the facts of the case, the consignment was booked by accused no.1, and therefore, he was found to be transporting the psychotropic substance in contravention of Section 8(c) of the NDPS Act. There is no allegation against the appellant of transporting the contraband. The consignment was booked in the name of the accused no.1 as per the prosecution case. Therefore, unless it is proved that the appellant had supplied the consignment to accused no.1 or was a part of a criminal conspiracy to commit an offence under Section 22(c), the appellant cannot be punished.
Perusal of the evidence of accused no.3, who was examined as a defence witness, shows that he was carrying on the business of M/s Maheshwari Medical in his wife's name. He stated that he issued invoices for sending Fortwin injections to the appellant. However, there is no evidence on record to show that accused no.3 procured the contraband that is the subject matter of the prosecution and handed it over to the appellant or accused no.1.
There is no recovery from the appellant of any incriminating material. There is no evidence to show that the contraband tried to be transported by accused no.1 by railway parcel was delivered by or on behalf of the appellant to accused no.1. There is no evidence of any conspiracy against the appellant. Therefore, the respondent has not established the offences punishable under Sections 22(c) and 29 of the NDPS Act against the appellant beyond a reasonable doubt - In the charge, there is no reference to the allegation of commission of an offence under Section 29 of the NDPS Act.
However, it is not necessary to go into the question of whether non-framing of charge under Section 29 of the NDPS Act has resulted in the failure of justice. The reason is that there is absolutely no legal evidence on record to show that the contraband attempted to be transported by accused no.1 by a railway parcel was supplied to him by the appellant. There is no evidence of the appellant's participation in any conspiracy.
The conviction of the appellant cannot be sustained - the impugned judgments set aside and the appellant is acquited of all charges against him - appeal allowed.
Detention order - smuggling - contraband gold - baggage - Non-supply of relevant documents (WhatsApp chats) - right of the detenus under Article 22(5) of the Constitution of India - HELD THAT:- In the present case, the detenue had sought the copies of the said WhatsApp chats. However, the Division Bench of the High Court in the present case, while rejecting the case of the detenue, observed that the detaining authority had arrived at a subjective satisfaction on the basis of various documents and that non-supply of the WhatsApp chats would not vitiate the detention order. It, therefore, held that the findings of the Coordinate Bench of the same High Court in the cases of Nushath Koyamu [2022 (6) TMI 326 - KERALA HIGH COURT] and other connected matters in respect of other detenus could not be followed in the present case.
The Division Bench of the High Court while passing the impugned judgment and order should have followed the view taken by another Division Bench of the same High Court specifically when the grounds of detention and the grounds of challenge were identical in both the cases. In the event, the Division Bench of the High Court was of the view that the earlier decision of the Coordinate Bench of the same High Court was not correct in law, the only option available to it was to refer the matter to a larger Bench.
Order of detention is quashed and set aside - Appeal allowed.
Dishonour of Cheque - burden of proof to rebut the presumption - presumption under Sections 118(a) and 139, NI Act - Section 313 of CrPC - HELD THAT:- When presumption under Section 139 was raised, Trial Court ought to have conducted proceedings basis that the cheque was issued in discharge of a debt or liability towards the complainant. At this juncture, the onus was on the accused to rebut the presumption under Section 139. Had the accused been successful in rebutting said presumption, the onus would have then shifted onto the complainant/appellant. The fundamental flaw on part of Trial Court was failing to note effect of the presumption under Section 139 NI Act. As a result, Trial Court erroneously proceeded to deliberate upon want of evidence on part of appellant/complainant i.e. no interest was charged, friendly relations between the parties were not proved, financial capacity not established, and most importantly, guilt of the accused was not proved beyond reasonable doubt.
Supreme Court in Sumeti Vij v. Paramount Tech Fab Industries [2021 (3) TMI 383 - SUPREME COURT] observed that statement under Section 313 CrPC is not substantive evidence of defence by accused, and hence, same is insufficient for the purpose of rebuttal of presumption under Section 139 NI Act. Much like the present case, in Sumeti Vij accused had not replied to legal notices sent, nor had made any payments thereafter. Furthermore, while accused gave a statement under Section 313 CrPC, defence evidence was not led therein even though accused pleaded not guilty and claimed trial.
Presumption under Section 139 read with Section 118 of the NI Act is essentially based on pure common sense. Instead of having the accused prove to the contrary, the accused is acquitted, as in this case, without having led any defence evidence and purely relying upon the inconsistencies in the affirmative proof provided by the complainant. The law and its application, is therefore turned on its head.
This Court is of the view that there was a fundamental error in the approach taken by the Trial Court whereby it went on to dissect the case put up by the appellant, instead of first examining whether the respondents had rebutted the presumption under Section 139 of NI Act.
Seeking grant of bail - involvement in business of prohibited drugs and for recovery of 3600 tablets of Lomotil and 298 tablets of Alprax 0.5 - HELD THAT:- Taking into consideration the entire facts and circumstances, but without commenting on merits thereon it is required to be considered at the time of adjudication of bail application, it is opined that petitioner may be enlarged on bail in present case at this stage.
The petitioner is ordered to be enlarged on bail, subject to fulfilment of conditions imposed - petition allowed.
Doctrine of prospective overruling - Demands for tax under state legislation pertaining to Entries 49 and 50 of List II of the Seventh Schedule - Infringement of fundamental rights in Part III of the Constitution - HELD THAT:- The doctrine of prospective overruling is applied when a constitutional court overrules a well-established precedent by declaring a new rule but limits its application to future situations. The underlying objective is to avert injustice or hardships. The doctrine was applied by the courts in the US on the basis that the US Constitution “neither prohibits nor requires retroactive effect.
The US Supreme Court has considered the existence of a statute or judicial decision as an “operative fact” having “consequences which cannot justly be ignored” or “erased by a new judicial declaration. Therefore, it was held that the effect of a subsequent ruling as to invalidity may have to be considered in light of various aspects.
This Court has adopted the doctrine of prospective overruling, partly inspired by the jurisprudence developed in the US. In GOLAKH NATH VERSUS STATE OF PUNJAB [1967 (2) TMI 95 - SUPREME COURT] a Bench of eleven Judges of this Court was called upon to decide the validity of the Constitution (Seventeenth Amendment) Act 1964 which included certain state agrarian laws in the Ninth Schedule of the Constitution. The majority held that an amendment to the Constitution was “law” according to the definition under Article 13. Further, it was held that constitutional amendments are also subject to limitations prescribed under Article 13 (2).
In JINDAL STAINLESS LTD. AND ANR. VERSUS STATE OF HARYANA AND ORS. [2016 (11) TMI 545 - SUPREME COURT (LB)] a Bench of nine Judges of this Court held that a non-discriminatory tax does not per se constitute a restriction on the right to free trade, commerce and intercourse guaranteed under Article 301. This Court overruled long-standing precedents that held that taxes, except for compensatory taxes, offend Article 301.
The total amount, that is the principal plus the interest, due by the assesses in the pending matters may be substantial in comparison to their total net worth. Steel Authority of India has stated on affidavit that retrospective application of MADA (supra) will lead to revival of cumulative demands to the tune of approximately Rupees three thousand crores from different States. The delay in the court proceedings should not be to the detriment of the assesses.
While the States may levy or renew demands of tax, if any, pertaining to Entries 49 and 50 of List II of the Seventh Schedule in terms of the law laid down in the decision in MADA the demand of tax shall not operate on transactions made prior to 1 April 2005 - The time for payment of the demand of tax shall be staggered in instalments over a period of twelve years commencing from 1 April 2026 - The levy of interest and penalty on demands made for the period before 25 July 2024 shall stand waived for all the assesses.
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