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Indian Laws - Case Laws
Showing 281 to 300 of 26755 Records
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2024 (6) TMI 839
Seeking a direction to the respondents to provide copies of the documents that was seized from the premises of petitioner - seizure order - HELD THAT:- The petition is disposed of directing the respondents to dispose of the representation dated 11.05.2024 of the petitioner in accordance with law within a period of two weeks.
Petition disposed off.
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2024 (6) TMI 838
Maintainability of petition - efficacious remedy of appeal - Appointment of an arbitrator as envisaged under Section 18(2)a of the Credit Information Companies (Regulation) Act, 2005 - ds to non updation of credit information by the second respondent for which remedy has been provided under Section 21(3) of the Act and Rule 22 of its Rules, 2006 - HELD THAT:- The dispute between the borrower and the credit institution are not covered under Section 18 of the Act. Such grievance is specifically covered under Section 21 (3) of the Act which mandates credit institutions / credit information company, as the case may be, to take appropriate steps to update the credit information within 30 days after being requested to do so.
However, if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by the Hon'ble Supreme Court of India not to operate as a bar in at least three contingencies i.e. where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
The case on hand does not fall under any of the category to entertain the writ petition under Article 226 of the Constitution of India. Therefore, this writ petition is not maintainable - Though Debt Recovery Tribunal granted interim order on condition to pay 25% of the demand amount, the said interim order was not complied with and auction was concluded in respect of four properties and realised a sum of Rs. 216.50 lakhs - the petitioner was declared as wilful defaulter.
The direction sought for in this writ petition cannot be granted and the writ petition itself is devoid of merits and liable to be dismissed - Petition dismissed.
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2024 (6) TMI 837
Willful defaulters - Declaration of loan account as fraud - It is the petitioners’ case that without issuing any notice to them and without giving an opportunity of hearing, petitioner no. 1’s loan account has been declared to be a fraud account under the RBI’s Master Directions on Fraud - HELD THAT:- It is not disputed that the fraud declaration is issued without giving an opportunity of hearing to the petitioners. Respondents were unable to place on record any document to indicate that any show cause notice with regard to the declaration of fraud was served upon the petitioners and that the copy of the fraud declaration was intimated to the petitioners. So far as the fraud declaration is concerned, the same is governed by RBI’s Master Directions on Fraud. The willful defaulter orders are issued under the RBI’s Master Circular. Though show cause notice was issued and a personal hearing was given to the petitioners before issuing the willful defaulter orders, a perusal of the show cause notice indicates that except for calling upon the petitioners to explain the allegations made in the show cause notice, no material was supplied to the petitioners indicating as to on what basis the respondent bank arrived at a prima facie opinion that petitioners are willful defaulters.
A perusal of the allegations in the show cause notice and the observations made by WDIC and the review committee indicates that the grounds accepted by WDIC and the review committee does not form part of the allegations in the show cause notice. Thus, the petitioners are justified in making a grievance that respondent bank has not followed the basic principles of natural justice before declaring the petitioners as willful defaulters - It is a matter of record that the prima facie view taken by the bank in the show cause notice was not supported by any material supplied to the petitioners. Thus, the petitioners accused of being willful defaulters were unable to discharge their burden to prove their innocence.
The orders declaring the petitioners as willful defaulters results into serious civil consequences. Hence, the bank is under obligation to provide all the material relied upon to form prima facie opinion for calling upon the noticee to issue show cause. Thus, the orders passed in both petitions, declaring the petitioners as willful defaulters, suffer from a breach of principles of natural justice and thus are arbitrary, which deserve to be quashed and set aside.
Orders passed in the case of Immense Packaging Private Limited and Govinda Industries Private Limited, declaring the petitioners as willful defaulters, are quashed and set aside - fraud declarations declaring the account of Immense Packaging Private Limited and Govinda Industries Private Limited are quashed and set aside.
Petition allowed in part.
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2024 (6) TMI 750
Dishonour of Cheque - entitlement to a person who is an accused in complaint for an offence punishable under section 138 of NI Act, 1881, to give evidence on an affidavit as provided under section 145 of the NI Act, 1881 - The petitioners, after their examination u/s 313 of the Code of Criminal Procedure, 1973, tendered an affidavit in lieu of examination in chief. The complainant objected, arguing that the accused has no right to adduce evidence by way of affidavit u/s 145 of the NI Act, 1881.
HELD THAT:- The question that arose for consideration in the case of Mandvi Cooperative bank [2010 (1) TMI 570 - SUPREME COURT] was in the context of the import of amended section 143 and 145 of the NI Act, 1881, in particular. On the contrary, a larger issue of expeditious completion of the trial in the complaints under section 138 of the NI Act, 1881 was the subject matter of the Writ Petition filed by the Indian Bank Association [2014 (5) TMI 750 - SUPREME COURT]. In that context, the Supreme Court gave certain directions. However, despite noting the decision in the case of Mandvi Cooperative bank, especially the fact that the provisions contained in section 145 were restricted to permitting the complainant to lead evidence on affidavit and do not provide the same dispensation to the accused, Indian Bank Association did not struck a discordant note.
The decisions of this Court in SBI Global Factors Limited [2021 (3) TMI 490 - BOMBAY HIGH COURT] and NITIN VERSUS PRAKASHRAO [2024 (1) TMI 1292 - BOMBAY HIGH COURT] have correctly held that the question sought to be raised by the petitioners is no longer res integra and stands concluded against the accused by the judgment of the Supreme Court in the case of Mandvi Cooperative bank. This Court does not find any reason to take a different view of the matter than the one taken by the coordinate Benches in the cases of SBI Global Factors Limited and Nitin Shriram Sabe. Therefore, the invitation of Mr. Patel (petitioner) to take a different view of the matter is declined and the question referred to a larger Bench.
Since the trial in the complaints has reached an advanced stage and only the evidence for the accused is to be adduced, it is deemed appropriate to request the learned Metropolitan Magistrate to conclude the trial as expeditiously as possible.
Petition dismissed.
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2024 (6) TMI 749
Dishonour of cheque - recovery of debt when the borrower has initiated the proceedings for insolvency under the Code, 2016 - HELD THAT:- The Supreme Court after taking note of judgment passed in the case of P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] has held in the case of AJAY KUMAR RADHEYSHYAM GOENKA VERSUS TOURISM FINANCE CORPORATION OF INDIA LTD. [2023 (3) TMI 686 - SUPREME COURT] has held that proceedings under the Insolvency and Bankruptcy Code do not automatically extinguish criminal proceedings under the Negotiable Instruments Act.
Considering the totality of facts and circumstances of the case and in view of the fact that merely because of initiation of proceedings under the Code, 2016 the signatory of the cheque cannot escape from his liability, it is held that conviction recorded by Trial Court was not bad on account of initiation of proceedings under the Code, 2016.
The Appellate Court did not commit any mistake by directing the applicant to deposit an amount of Rs. 13,73,890/- as a condition precedent for suspension of sentence - application dismissed.
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2024 (6) TMI 748
Dishonour of Cheque - Conviction and sentence under Section 138 of the Negotiable Instruments Act - presumption under Section 139 N.I. Act in favour of the Complainant/Opposite Party not rebutted - HELD THAT:- The mandatory provisions under Section 138 N.I. Act has also been duly complied with by the complainant - It appears that the cheque has been issued by the petitioner in his personal capacity from his personal account - Thus the findings and order of conviction passed by the Trial Court and affirmed by the Appellate Court is in accordance with law and thus requires no interference by this Court - But the sentencing is clearly not in accordance with law.
In the present case the petitioner has been convicted and sentenced to pay Rs. 1,00,000/- as compensation in default to suffer simple imprisonment for a period of twelve months.
In Krishan Gupta & Anr. Vs State of West Bengal & Anr. [2007 (3) TMI 834 - CALCUTTA HIGH COURT], it was held that 'The Negotiable Instruments Act provides for sentence of imprisonment and sentence of fine. The compensation is not the part of any sentence neither it is a substitute of sentence but in addition thereto. The provisions of Section 357(3) of the Code makes it abundantly clear that when Court imposes a sentence may order the accused person to pay by way of compensation such amount as may be specified, when fine does not form the part of the sentence. Therefore, no compensation can be awarded without being preceded by imposition of sentence and obviously not by imposition of sentence of fine.'
The judgment and order dated 30.03.2019 passed by the learned Sessions Judge, Hooghly in Criminal Appeal No. 6/2018 and the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 5th Court, Hooghly, in CR No. 98/2013, convicting the petitioner to pay Rs. 1,00,000/- to the complainant as compensation within 30 days in default he shall suffer simple imprisonment for a period of twelve months, as to sentence not being in accordance with law is hereby modified - Application disposed off.
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2024 (6) TMI 707
Dishonour of Cheque - insufficient funds - Prayer for leave to defend the suit unconditionally - only defence of the defendant is that the defendant has issued the cheques for security but the plaintiff is illegally withholding the original title deeds and due to such act, the defendant has suffered severe loss and damages - HELD THAT:- In the present case, the defendant has no defence and the defence set up by the defendant are illusory and sham.
This Court finds that the plaintiff do get decree against the defendant for a sum of Rs. 7,23,63,548/-. The plaintiff also entitled to get further interest at the rate of 12% per annum from 13th April, 2017, on Rs. 4,05,00,000/- till the realization to the amount.
Application allowed.
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2024 (6) TMI 706
Dishonour of Cheque - Quashing of the entire criminal proceeding arising out of Complaint Case - Criminal conspiracy to encash the cheques provided to the petitioners under the agreement by forging and fabricating bills of huge amount despite no material having been supplied - HELD THAT:- It is an admitted fact further that the cheque was issued as security pursuant to financial transaction by M/s New City Agency, which is admitted in the complaint petition itself and that cheque cannot be considered as worthless piece of paper under every circumstance.
A reference may be made to the judgment passed by the Hon'ble Supreme Court in the case of SRIPATI SINGH (SINCE DECEASED) THROUGH HIS SON GAURAV SINGH VERSUS THE STATE OF JHARKHAND & ANR. [2021 (11) TMI 66 - SUPREME COURT] (Since Deceased) through his son wherein, it has been held that 'If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow.'
In view of the above, when the case under Section 138 of the Negotiable Instruments Act was already filed by the petitioner-company, opposite party no. 2 was having all the opportunity to defend the case in that pending complaint case and without doing so, he has filed the present complaint case implicating the petitioners.
The Court comes to a conclusion that the present case is arising out of an agreement and the dispute, if any, is there, that is civil in nature and for that complaint case has been filed only to cut short the civil proceeding where some delay take place in deciding the cases and the present case has been filed after knowing about filing of the complaint case by the petitioner-company in the State of Chhattisgarh, which clearly suggests that this is a malicious prosecution against the petitioners, as such, the entire criminal proceeding arising out of Complaint Case No. 379 of 2019 including the order taking cognizance dated 24.07.2019, pending in the Court of the learned Judicial Magistrate, 1st Class, Bokaro are, hereby, quashed.
Petition allowed.
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2024 (6) TMI 705
Applicability of Right to Information Act, 2005 - public authority within the meaning of Section 2(h) of the Right to Information Act, 2005 or not - HELD THAT:- A cooperative society registered under the Tamil Nadu Co-operative Societies Act is not bound by the RTI Act to provide the information requested by a citizen and that the co-operative society does not fall within the definition of “public authority” as defined under Section 2(h) of the RTI Act. Therefore, the impugned order passed by the 1st respondent in S.A.No.6082/A/2022 dated 04.05.2022 is liable to be quashed.
The impugned order is quashed and this Writ Petition is allowed.
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2024 (6) TMI 704
Dishonour of Cheque - cheque dishonoured for variance in signature - failure to cross examine witness - Section 391 of Cr.P.C. - HELD THAT:- In the complaint and in the proof affidavit there is no reference to the cheque drawn in Punjab National Bank bearing Cheque No.169684 dated 20.11.2020 for a sum of Rs.20,00,000/- issued by the respondent's mother and how the cheque, reached the petitioner's hand needs explanation, for which, necessarily the petitioner has to examine the respondent's mother as well as to cross examine the respondent. The petitioner failed to cross examine the respondent before the Trial Court will not be a reason to come to a conclusion that there is no cross examination required and the petitioner had committed the offence.
It is to be seen that the evidence includes examination-in-chief, cross examination, re-examination and the evidence would be complete when it is tested by cross examination. In this case, admittedly the respondent/complainant was not cross examined. Further, in a case under Section 138 NI Act, statutory presumption against the accused has to be dislodged by way of materials and cross examination. In the present case, the case is at the appellate stage and hence, Section 391 Cr.P.C. had been invoked by the petitioner.
In the case of Rambhau vs. State of Maharashtra [2001 (4) TMI 937 - SUPREME COURT], the power under Section 391 Cr.P.C. had been elaborated and the Apex Court held that there are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court and the ultimate object of judicial administrative is to secure ends of justice, the Court exists for rendering justice to the people. The Apex Court further held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial.
The respondent/complainant was not cross examined, further in the complaint and in the proof affidavit the transaction between the petitioner and the respondent's mother reiterated and Ex.P9 marked, this Court finds that cross examination of the respondent and examination of respondent's mother Mrs.D.Kuzhalamani as additional witness is necessary - the criminal revision petition stands allowed.
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2024 (6) TMI 703
Dishonour of Cheque - legally enforceable debt or not - debt on account of a default alleged to have been committed in the payment of chit - HELD THAT:- A careful perusal of the various documents produced by the appellant in the respective complaints against the respondents show that, but for the account statement for the said period, there is no other material to show that there is a default committed by the respondents. Further, there is also no material to show that the appellant had called upon the respondents to pay the said sum towards the chit default by giving the requisite details with regard to the non-payment of monthly chits by the respondents.
In the case on hand, it is the case of the respondents that the cheques, which are the subject matter of the present appeals/petitions, were not given for the discharge of a legally enforceable debt, which has been accepted by the courts below on the ground that neither the appellant has proved that the cheques were given for the purpose of discharging a legally enforceable debt nor any materials have been placed by the appellant to show that there existed a legally enforceable debt towards which the cheques in issue were given. Without the appellant discharging his share u/s 138, the appellant cannot fall back on Section 139 to show that the presumption would have to be given to the appellant and the ball would have to be placed in the court of the respondents to prove that the cheques were not given towards the discharge of a legally enforceable debt or other liability.
The appellant ought to discharge their burden by giving the requisite details with regard to the statement of account and all the other details, which have been noted above and without giving the aforesaid details, placing a cheque, which is alleged to have been dishonoured, which is alleged to have been given by the respondents cannot be the basis to hold that a case u/s 138 of the Act is made out.
The whole case of the respondents is on the ground that they dispute the amount shown by the appellant and that the cheque, which was given for security purpose was misused by the appellant and, therefore, the amount having not been established to be a legally enforceable debt, the dishonour of the cheque would not attract the wrath of Section 138 of the Act. Therefore, the aforesaid decision also does not in any way aid the appellant - If the appellant is able to provide all the details and place materials to establish the same, then there would be no impediment for the court below to look into the issue u/s 138 of the Act. Without placing the aforesaid materials, it would not be justified for this Court to interfere with the well considered orders passed by the courts below in the respective petitions.
The impugned orders passed by the respective courts in the petitions does not deserve interference and the same stands affirmed - Appeal dismissed.
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2024 (6) TMI 702
Dishonour of Cheque - seeking interim compensation u/s 143A of the NI Act - rebuttal of presumption - HELD THAT:- The Court adjudicating upon a Complaint under Section 138 of the NI Act 'may' order the drawer of the cheque in question to pay any amount, not exceeding twenty per cent of the amount of the cheque, as interim compensation to the complainant in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint or in any other case, upon the framing of charges. It is no longer res integra that the said power of the Court to direct the drawer to pay interim compensation under Section 143A of the NI Act, is a discretionary power, to be exercised judiciously after considering the facts and circumstances of each case and cannot be claimed as a right, mandating the Court to grant interim compensation to the complainant.
In the present case, the petitioner alleges that he has given an amount totalling to Rs.20 lacs to the respondent for the purpose of securing a lease/license for a canteen at Sena Bhawan by the respondent and securing employment of the petitioner's children, son- in-law, friend of his daughter, and a friend of his son-in-law at the said canteen. The respondent is stated to be working as an official at Sena Bhawan. Therefore, prima facie, the consideration of the above payment does not appear to be lawful - That apart, there is no proof of such payment filed with the complaint. There is also no written agreement. All that the petitioner has to show are the cheques.
The power under Section 143A of the NI Act being discretionary in nature, the order can be interfered with by this Court only if it is found to be perverse or so unreasonable so as to conclude that discretion could not have been exercised in the said manner. This Court is not sitting as a Court of Appeal against the Order passed by the learned Trial Court in exercise of its powers under Section 143A of the NI Act.
There are no merit in the challenge of the petitioner to the Impugned Order - petition dismissed.
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2024 (6) TMI 701
Dishonour of Cheque - maintainability of proceedings against the petitioner, inasmuch as the same have been instituted without following the legal principles surrounding part-payment of debt - HELD THAT:- The effect of the Section 56 of the NI Act is that where certain amount under the cheque has been paid, a note to that effect ‘may’ be endorsed on the cheque, which may thereafter be negotiated (and by extension, presented) for the balance.
It is clear that in case a cheque is issued for a certain amount, and before its presentation, part of the said amount is paid by the drawer of the cheque, then the drawee has to necessarily/mandatorily make an endorsement of the aforesaid part-payment upon the cheque and only then the cheque can be presented for encashment. If the said endorsement is not made, then even if the said cheque is dishonoured upon presentation, the same does not make out an offence under Section 138 NI Act, since the cheque does not represent ‘legally enforceable debt’ at the time of its presentation/encashment.
In the present case, the factum of part-payment of Rs.7,50,000/- is not disputed. However, the subject cheque, which has been presented for encashment, is for the entire amount payable under it i.e. Rs.22,40,000/-, which is evidenced by the return memo dated 12.06.2020, which mentions the cheque amount as ‘Rs.2240000’ and which fact is also acknowledged by learned counsel for the respondent. Failure of the respondent to endorse the part-payment on the subject cheque is fatal to his case, as one of the essential ingredients for the offence under Section 138 NI Act i.e., presentation of cheque for ‘legally enforceable debt’ is not fulfilled.
This Court is of the considered opinion that continuation of the legal proceedings against the petitioner would be an abuse of process of law. Consequently, the petition is allowed and the complaint case bearing No.310/2021 is quashed. As a necessary sequitur, the summoning order dated 19.02.2021 is also set aside.
Petition disposed off.
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2024 (6) TMI 700
Dishonour of Cheque - compounding of the matter - HELD THAT:- The Hon’ble Apex Court while dealing with the object of the scope of Section 138 and the provision of compounding in Section 147 of the Negotiable Instruments Act, has held in P. Mohanraj and Others versus Shah Brothers Ispat Private Limited [2021 (3) TMI 94 - SUPREME COURT]. The Hon’ble Apex Court has discussed the scope of Section 138 of the Negotiable Instruments Act Section 147, regarding compounding of offence, under the aforesaid Act, holding that 'even after issuance of notice if the payee or holder does not make the payment within the stipulated period, the statutory presumption would be of dishonest intention exposing to criminal liability.'
Once the proceedings under Section 138 have been held to be proceedings in the form of a civil sheep in a criminal wolf’s clothing, therefore, once the petitioner - accused has amicably decided to settle/liquidate/ discharge his liability, though, the transactionproceedings have a tinge of criminal liability, then, on settling the entire liability in view of Section 147 of the Negotiable Instruments Act, the compounding of offences, on discharge of liability, appears to be genuine, is certainly is a step towards securing the ends of justice. It is relevant to observe that once the Respondent- Complainant who had initiated the proceedings under Section 138 of the Negotiable Instruments Act, 1881, has received his cake then, no useful purpose will be achieved in continuing the criminal proceedings against the accused-petitioner despite having discharged/ liquidated his liability.
This Court on the basis of the material placed on record is satisfied that the petitioner-accused [Budhi Singh] and Respondent No.2-Complainant have settled the dispute and Respondent No.2-Complainant has no grudges against the petitioner-accused, who has liquidated/ discharged/remitted his liability in favour of the complainant in the proceedings under Section 138 of the Act.
Petition disposed off.
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2024 (6) TMI 699
Dishonour of Cheque - dismissal of petitions filed by the accused under Section 91 Cr.P.C, Section 311 Cr.P.C and Section 254(2) Cr.P.C respectively - rebuttal of statutory presumptions - HELD THAT:- It is relevant to note that, after dismissal of these two sets of petitions, one to recall PW-1 and another to produce documents, the petitioner/accused had filed another set of petitions under Section 254(2) Cr.P.C to summon Managers of his Banks, where he maintains his accounts, to prove, how much money really transferred from the complainants into his account. The trail Court had dismissed these petitions also on 03/02/2024 on the ground that these facts can be established by the accused by examining himself as defence witness. The trial Court has opined that, summoning the Bank Managers to give evidence is not necessary, when there is nothing to indicate that the Bank Managers refused to given the bank statements of the accused. The dismissal of the petitions filed under Section 254(2) Cr.P.C is also under challenge in the third set of Criminal Original Petitions.
This Court is of the view that, when the complaint lack details about the manner in which the liability arose to issue the subject cheques and when the complainants admit that they are income tax assesses and they maintain bank accounts through which portion of the loan amount was transferred, then for proper appreciation of the facts can be done, only if the witnesses are recalled and confronted why they contradict their earlier admission and why they refuse to produce the documents as sought for by the accused. Expecting the accused to rebut the presumption, withhold the documents necessary for the proof of foundational facts will be unfair. Hence, the impugned order dismissing petitions filed under Section 311 Cr.P.C and Section 91 of Cr.P.C, dated 27/09/2023 is set aside.
This Court confirms the order of the trial Court dismissing the petitions filed under Section 254(2) of Cr.PC and the petitions filed challenging the said order dismissed.
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2024 (6) TMI 677
Dishonour of Cheque - compounding of the offence - HELD THAT:- In the case at hand, petitioner-accused has already paid the compensation amount to the respondent-complainant, as has been stated by him in his statement taken on record and as such, this court, in terms of S.147 of the Act and guidelines framed by Hon’ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H. [2010 (5) TMI 380 - SUPREME COURT], can proceed to compound the offence.
This court finds no impediment in accepting the prayer made on behalf of the applicant/accused through instant application for compounding of the offence and same is allowed - Impugned judgments of conviction and order of sentence passed by both the learned Courts below are quashed and set aside and the petitioner-accused is acquitted of the offence punishable under Section 138 of the Act.
Application allowed.
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2024 (6) TMI 676
Dishonour of Cheque - discharge of a legally enforceable debt or not - rebuttal of statutory presumption u/s 139 of the Negotiable Instruments Act - HELD THAT:- It is beyond a cavil of doubt that the power of this Court is not curtailed or limited, as it is within its realm to reappreciate the evidence available on record to render a finding. However, in reappreciating the evidence, this Court has to see whether the view taken by the trial court could not be taken by any prudent man on appreciating the materials available before it. If the view taken by the trial court, considered overall on the materials placed, is just and reasonable that the view taken by the trial court is on proper appreciation of the materials, the High Court cannot interfere with the acquittal on the ground that another view is possible.
This Court will now proceed to analyse the evidence on record to find out whether the view arrived at by the trial court is based on the materials available on record or whether there are materials, which warrants grant of leave by this Court.
In the absence of any witness to the passing of the amount from the petitioner to the respondent, even to aver that such a transaction could have taken place, it is incumbent on the petitioner to prove that he had the wherewithal to lend the said amount as loan to the respondent. In this regard, a perusal of the order of the court below reveals that the petitioner has not established as to where from he had the amount to be given as loan to the respondent. The petitioner merely claims that it came from his wife’s side towards sale of some properties. However, there are no materials to establish the same.
The presumption available u/s 139 has to be rebutted by the accused, whereinafter, a duty is cast on the complainant to establish that the cheque, which stood dishonoured, was issued for the purpose of discharging a legally enforceable debt. In the case on hand, the respondent, through the evidence of D.W.1 and other documentary evidence has established that the cheques had not been issued to the petitioner by the respondent and such being the case, the petitioner having failed to establish that there is a legally enforceable debt, towards which the cheques were issued, the leave sought for by the petitioner to file the appeal could only be termed to be an exercise in futility as nothing could be established in the appeal and the petitioner having miserably failed to establish that he had advanced loan to the respondent, cannot seek to file the appeal praying the leave of this Court.
The impugned orders passed by the court below do not deserve any interference and the same stands affirmed - Petition dismissed.
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2024 (6) TMI 675
Dishonour of Cheque - insufficiency of funds - legally enforceable debt or not - acquittal of the accused of the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 - adduced satisfactory evidence to prove the execution and issuance of cheque or not - rebuttal of statutory presumptions under Sections 139 and 118 of the NI Act - HELD THAT:- In HARBHAJAN SINGH HARBHAJAN SINGH VERSUS STATE OF PUNJAB [1965 (3) TMI 101 - SUPREME COURT], the Honourable Supreme Court held that the onus on an accused person might well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities.
The Honourable Supreme Court considered the nature of the standard of proof required for rebutting the presumption under Section 139 of the Negotiable Instruments Act in MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. [2006 (7) TMI 576 - SUPREME COURT], and it was held that if some material is brought on record consistent with the innocence of the accused, which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.
It is well settled that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible, as held by the Honourable Supreme Court in K PRAKASHAN VERSUS PK SURENDERAN [2007 (10) TMI 551 - SUPREME COURT]. When the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable, it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
There are no reason to interfere with the finding in the impugned judgment that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant and in that circumstance, the appeal is liable to be dismissed.
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2024 (6) TMI 608
Maintainability of suit - goods were supplied and delivered as per the requirements of the defendant or not - recovery alongwith interest on account of goods sold and delivered - time limitation - HELD THAT:- The plaintiff has not proved what was the total cost of the materials supplied by the plaintiff to the defendant and how much amount has been paid by the defendant to the plaintiff. The plaintiff has made out the specific case that the last payment was made by the defendant on 4th February, 2013 but the plaintiff failed to prove the same. As per the bank statement, confirmation of account, challans and tax invoices all the transactions are till 2011 and the plaintiff has filed the suit on 27th January, 2016, thus the suit filed by the plaintiff is barred by limitation.
This Court finds that the plaintiff failed to prove the case and the suit is also barred by limitation.
Application dismissed.
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2024 (6) TMI 487
Applicability of the MPID Act to Co-operative Banks - "Financial Establishment" under Section 2(d) of the MPID Act - fraud practised while distributing loans - HELD THAT:- Merely because a co-operative bank to which the provisions of the BR Act are applicable by virtue of insertion of Section 56(a) with effect from 01.03.1966 or by virtue of amendment coming into effect from 01.04.2021 thereby transforming into a non-obstante clause, cannot be said to have been excluded by implication from the ambit of the MPID Act, in view of the definition of ‘Financial Establishment’ contained in Section 2(d) of the MPID Act.
True it is that any co-operative bank registered under the Central or State legislature to which provisions of BR Act are applicable, would be under supervision of the RBI. However, one cannot lose site of the fact that the BR Act merely seeks to have a control over the functioning of all the banking companies or the co-operative banks, however, it does not contain any specific provision defining any act or provide for any punishment for the offences which are punishable under Section 409, 420, 467, 468 and 471 read with Section 34 of the Indian Penal Code. Only some acts have been made punishable by making the offences cognizable as mentioned in Section 47.
Consequently, it cannot be said that the purpose for which MPID Act has been brought in the statute book stands served by bringing the co-operative banks registered under the State legislature within the sweep of the BR Act. Both these enactments operate in different spheres.
The Criminal Writ Petition is dismissed.
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9911796707
