|
Advanced Search Options
Indian Laws - Case Laws
Showing 301 to 320 of 26755 Records
-
2024 (6) TMI 486
Acceptance of bid in a tender for providing manpower based on pricing and inclusion of GST - Scope of judicial review - HELD THAT:- It is not in dispute that the petitioner nos.1 and 2 have quoted a bid of 1.18, as against which, the bid of the respondent no.2, was of 1.03 which would indicate that the bid of the respondent no.2, was less than that of the petitioner nos.1 and 2. It would be clear from the language of clause 10 (B) of the NIT that the GST, would be payable, over and above this figure, as the NIT does not indicate the GST to be included in the financial bid, it being a statutory imposition, which is payable, by every successful bidder, over and above, the bid amount.
The principles of judicial review in tender matters, are very narrow and it is not permissible for the Court, to read into the terms of the NIT, which is not reflected.
There are no merit in the present petition so as to interfere - petition dismissed.
-
2024 (6) TMI 437
Prosecution for bribery - Corruption - Doctrine of stare decisis - Whether by virtue of Articles 105 and 194 of the Constitution a Member of Parliament or the Legislative Assembly, as the case may be, can claim immunity from prosecution on a charge of bribery in a criminal court?
Doctrine of stare decisis - HELD THAT:- The doctrine of stare decisis is not an inflexible rule of law. A larger bench of this Court may reconsider a previous decision in appropriate cases, bearing in mind the tests which have been formulated in the precedents of this Court. The judgment of the majority in PV. NARSIMHA RAO VERSUS STATE (CBI/SPE) [1998 (4) TMI 503 - SUPREME COURT]), which grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking has wide ramifications on public interest, probity in public life and parliamentary democracy. There is a grave danger of this Court allowing an error to be perpetuated if the decision were not reconsidered.
Unlike the House of Commons in the UK, India does not have ‘ancient and undoubted’ privileges which were vested after a struggle between Parliament and the King. Privileges in pre-independence India were governed by statute in the face of a reluctant colonial government. The statutory privilege transitioned to a constitutional privilege after the commencement of the Constitution - Whether a claim to privilege in a particular case conforms to the parameters of the Constitution is amenable to judicial review.
Corruption - Prosecution for bribery - HELD THAT:- An individual member of the legislature cannot assert a claim of privilege to seek immunity under Articles 105 and 194 from prosecution on a charge of bribery in connection with a vote or speech in the legislature. Such a claim to immunity fails to fulfil the twofold test that the claim is tethered to the collective functioning of the House and that it is necessary to the discharge of the essential duties of a legislator - Articles 105 and 194 of the Constitution seek to sustain an environment in which debate and deliberation can take place within the legislature. This purpose is destroyed when a member is induced to vote or speak in a certain manner because of an act of bribery.
Bribery is not rendered immune under Article 105(2) and the corresponding provision of Article 194 because a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. The same principle applies to bribery in connection with a speech in the House or a Committee - Corruption and bribery by members of the legislatures erode probity in public life.
The interpretation which has been placed on the issue in question in the judgment of the majority in PV Narasimha Rao results in a paradoxical outcome where a legislator is conferred with immunity when they accept a bribe and follow through by voting in the agreed direction. On the other hand, a legislator who agrees to accept a bribe, but eventually decides to vote independently will be prosecuted. Such an interpretation is contrary to the text and purpose of Articles 105 and 194.
Appeal disposed off.
-
2024 (6) TMI 436
Dishonour of cheque - interim compensation u/s 143A of the NI Act, 1881 - determination of the quantum of interim compensation - HELD THAT:- A prima facie evaluation of the merits of the complainant’s claim and the defence of the accused is warranted to adjudge as to whether a case for grant of interim compensation is made out. In the event the defence of the accused is found to be prima facie plausible, the Court may exercise discretion in refusing to grant interim compensation. Furthermore, if the Court finds that interim compensation has to be awarded it is required to pose unto itself the question of appropriate quantum of the interim compensation. 20% of the amount covered by the cheque, which is the upper threshold, cannot be awarded as a matter of course.
In the case at hand, in the reply to the application, the accused alleged, inter alia, that a substantial part of the amount covered by the cheques was paid in cash and the said fact was evidenced by the vouchers. In addition, a sum of Rs. 19,09,750/- was paid through the banking channels. The copies of the invoices were annexed to the reply. Likewise, copies of the extracts of the bank accounts were tendered to bolster up the case that a substantial part of the amount covered by the cheques was paid to the complainant.
The aspect of dilatory approach of the accused cannot be said to be wholly irrelevant. It is true the mere fact that the accused regularly appeared before the Court and did not attempt to prolong the trial cannot be the sole consideration for declining to exercise discretion to award compensation under Section 143A. However, the measure of interim compensation was introduced as the unscrupulous drawers of dishonored cheques resorted to dilatory tactics to prevent expeditious disposal of the complaint under Section 138 of the NI Act, 1881.
Quantum of compensation - HELD THAT:- The second ground of challenge to the impugned order on the premise that the learned Additional Sessions Judge did not advert to the question of quantum of compensation while awarding interim compensation under Section 143A of the NI Act, 1881 appears to be well-merited. The impugned order singularly lacks any consideration as regards the determination of quantum of compensation.
The judgment and order passed by the learned Additional Sessions Judge stands quashed and set aside - Petition allowed.
-
2024 (6) TMI 435
Dishonour of Cheque for insufficiency of funds - acquittal of accused u/s 255(1) Cr.P.C - failure to prove that the cheque was issued by the accused in discharge of any debt or liability - standard of proof required for rebutting the presumption - HELD THAT:- The complainant, when examined as PW1, failed to give any satisfactory explanation for advancing a loan of Rs.2,60,000/- to the accused when amount is due as per Exhibit D2 agreement from the accused to the complainant. It is also pertinent to note that the amount due from the son of the accused to the complainant and his partner as per Exhibit D1 agreement dated 25.03.2002 and the amount shown in Exhibit P1 cheque are the same and in that circumstance, there are no reason to disagree with the finding of the trial court that the evidence of PW1 that he advanced a loan of Rs.2,60,000/- to the accused 3 months prior to 07.10.2002, is not at all reliable and that the case put forward by the accused is more probable.
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 M.S.Narayana Menon v. State of Kerala [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 the standard of proof which is required from the accused to rebut the statutory presumption under Sections 118 and 139 of NI Act is preponderance of probabilities and that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence - in the absence of any satisfactory evidence to show that Exhibit P1 cheque was issued for discharging a legally enforceable debt from the side of the accused to the complainant, there are no reason to interfere with the finding of the trial court that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant.
Appeal dismissed.
-
2024 (6) TMI 434
Dishonour of cheque for insufficiency of funds - challenge to acquittal of accused u/s 255(1) of Cr. P. C. - issuance of statutory notice - HELD THAT:- The period for issuance of statutory notice is from the date of receipt of information from the Bank regarding the return of the cheque as unpaid and not from the exact date of dishonour of the cheque and therefore, the finding of the trial court in this regard is not legally sustainable. The learned counsel for the first respondent also raised a contention that in Exhibit P3 notice, the complainant has demanded interest for the cheque amount and therefore, notice is vague.
But, it is found that the complainant has specifically stated the cheque amount in Exhibit P3 notice and only because the complainant has also mentioned about his legal right for interest in the notice, it cannot be held that the notice is invalid. In Suman Sethi v. Ajay K. Churiwal and another [2000 (2) TMI 822 - SUPREME COURT], the Honourable Supreme Court held 'If in a notice while giving up break up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, notice might well fail to meet the legal requirement and may be regarded as bad.'
As noticed earlier, the complainant has specifically mentioned the cheque amount in Exhibit P3 notice and only because he also mentioned about his right for legal interest, it cannot be held that the notice is invalid, as the said additional claim for legal interest is severable from the demand for the cheque amount. In the above circumstance, the finding of the trial court is liable to be set aside.
The impugned judgment is set aside and the accused is convicted under Section 138 of the NI Act and sentenced to undergo imprisonment till the rising of the court and to pay a compensation of Rs.70,000/- to the complainant under Section 357(3) Cr.P.C with the default clause that he shall undergo simple imprisonment for a period of four months - appeal allowed.
-
2024 (6) TMI 383
Quantum of compensation to which the appellants are entitled to - Reduction of compensation awarded by the Motor Accident Claims Tribunal - assessment of the income of the deceased - HELD THAT:- It is evident that besides generating income from the land owned by the family in the form of sale of paddy and bananas, the deceased was also having income from supply of milk and coconuts to the school. There is also material available on record to show that he worked as a Government contractor. Meaning thereby, to make the lives of his family members comfortable, the deceased was multi-tasking and he was not engaged in a 9.00 to 5.00 P.M. job.
The High Court on a very conservative basis assessed the income of the deceased at ₹20,000/- per month, bifurcating the same at ₹8,000/- per month for supply of milk to the school, ₹5,000/- per month from agriculture and ₹7,000/- per month from working as a contractor - considering the material placed on record by the appellants, income of the deceased deserves to be re-assessed as it is established that he was doing multiple works. It also came on record that after his death, the land was lying barren and was not being cultivated.
Assessment of compensation cannot be done with mathematical precision. The Motor Vehicles Act, 1988 also provides for assessment of just and fair compensation. In our opinion, considering the material placed on record by the appellants, as has been referred to above, and value of the labour being put in by the deceased in agriculture, it would be reasonable to assess his income at ₹35,000/- per month.
The appellants are found entitled to compensation of ₹38,81,500/- with interest @8% from the date of filing of the claim petition till realization. The judgment of the High Court is modified - Appeal disposed off.
-
2024 (6) TMI 382
Dishonour of Cheque - time limitation - seeking to to quash the underlying proceedings on the principal premise that as on the date of the issuance of the summoning order, the underlying debt and/or liability qua Respondent No. 2 was time barred - HELD THAT:- The classification of the underlying debt or liability as being barred by limitation is a question that must be decided based on the evidence adduced by the parties.
Undoubtedly, the question regarding the time barred nature of an underlying debt or liability in proceedings under Section 138 of the NI Act is a mixed question of law and fact which ought not to be decided by the High Court exercising jurisdiction under Section 482 of the CrPC.
The Impugned Order is set aside. The proceedings emanating from the Underlying Complaint i.e., CC No. 6437 of 2017 is restored to the file of the Trial Court - Appeal allowed.
-
2024 (6) TMI 381
Service of auction sale notice - auction sale - Default in repayment of loan - HELD THAT:- The respondent was fully aware of the auction notice dated 30.11.2012. He had, within 14 days thereafter, filed a writ petition before the High Court and was aware of the auction notice from before. He had also entered into an agreement with Abdul Haleem Siddiqui, who later on became the auction purchaser. The respondent was present at the time of the auction. The auction purchaser, has constructed flats on the property and transferred the same to various third parties, though it is stated that some flats are yet to be sold. At the same-time, there is no proof that notice dated 30.11.2012 was served by the appellant on the respondent.
As per the appellant, after adjusting the amount due and payable by the respondent, a sum of Rs.22,53,004/- (rupees twenty two lakhs fifty three thousand and four only), is due and payable and has been with them since 21.03.2013. By letter dated 21.03.2013, the appellant had sent a cheque of the aforesaid balance amount to the respondent, which was not accepted - we cannot be oblivious to the fact that the respondent was entirely aware of the auction process in terms of the notice dated 30.11.2012. The auction purchaser had constructed flats, which had been sold to various third parties.
The impugned order dated 02.07.2019 passed by the High Court and the order passed in review application are set aside. The sale by the appellant in favour of Abdul Haleem Siddiqui is upheld and confirmed.
Appeal allowed.
-
2024 (6) TMI 380
Dishonour of Cheque - acquittal of accused of offence u/s 138 of the NI Act - failure to prove the existence of a legally recoverable debt from the side of the accused to the complainant - rebuttal of statutory presumptions - HELD THAT:- A perusal of the complaint and the evidence of PW1 in chief examination clearly shows that the nature of the transaction alleged in the complaint and the chief affidavit of PW1 does not tally with the nature of the transaction mentioned in Exhibit P7, hire purchase agreement. PW1 has categorically admitted in cross examination that he is not in a position to depose regarding the entire matters in connection with the transactions between the accused and the complainant and he is also not in a position to say under what circumstance, the complainant issued Exhibit D1 notice to the accused and as to whether any legal proceedings was initiated against the accused by the complainant on the basis of Exhibit D1 notice.
It is pertinent to note that the specific case of the accused is that he has paid the entire instalments to the complainant as per Exhibit P7, hire purchase agreement and that no amount is due from him to the complainant in that connection.
There are no reason to disagree with the finding in the impugned judgment that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant and therefore, this appeal, which is devoid of merit, is liable to be dismissed.
Appeal dismissed.
-
2024 (6) TMI 291
Seeking quashing of the complaint proceedings pending before the Chief Judicial Magistrate, Lucknow - doctrine of Vicarious liability - applicant is the Chairman and Managing Director of Wipro Ltd. (Company) and has no interest in any shareholdings or managerial control over the M/s G4S Secure Solutions (India) Private Limited - HELD THAT:- This Court finds that the summoning order dated 03.09.2016 and the subsequent bailable warrant issued on 08.02.2017 against the applicant, lacks necessary legal and factual foundation. There appears force in the argument of learned Counsel for the applicant that the applicant has no administrative control over the functioning of G4S, he could not have been summoned for the alleged violation of the Equal Remuneration Act, 1976 under which the complaint has been preferred by opposite party No.2.
Further, on bare reading of complaint dated 26.08.2016, it is apparent that there was no objective material before learned Chief Judicial Magistrate, Lucknow to formulate an opinion for issuance of summoning order or even to register the complaint. It is thus, apparent that the registration of the complaint, the issuance of summoning order dated 03.09.2016 and the consequential issuance of bailable warrant vide order dated 08.02.2017 had been done in a mechanical manner sans application of mind whereas it has repeatedly been held that prior to the issuance of a summoning order it is imperative for learned Chief Judicial Magistrate to examine the complaint to ensure that the Directors or other senior officers of the company who have been named in the complaint are vicariously liable for the act complained of - As per the settled law, learned Chief Judicial Magistrate, Lucknow could not have issued process to the applicant under Section 204 Cr.P.C. and as such the entire complaint proceedings initiated against the applicant as well as summoning order dated 03.09.2016 and the order dated 08.02.2017 issuing bailable warrant against the applicant are without jurisdiction.
Whether the applicant was liable for any offence even if the allegations in the complaint are taken on their face value to be correct in entirety? - HELD THAT:- The Company is a body incorporated under the Companies Act. Vicarious criminal liability of its Directors and Shareholders would arise provided any provision exists in that behalf in the statute. The Statute must contain provision fixing such a vicarious liability. Even for the said purpose, it would be obligatory on the part of the complainant and the investigating agency to make requisite allegations and collect evidence in support thereof which would attract provisions constituting vicarious liability.
The applicant's impeccable reputation as an industrialist who upholds the highest standard of corporate governance and his extensive philanthropic contribution should be taken into account. His involvement in the case appears to stem from a misunderstanding or misapplication of legal principles rather than any malafide intent or violation of the Equal Remuneration Act, 1976. The orders issued against him lacks substantive ground, as the applicant has no direct or indirect control over the alleged matter and in light of the applicant's distinguished career and substantial contributions to society, it is evident that the proceedings against him are unfounded and merit reconsideration.
The instant application under Section 482 Cr.P.C. filed by the applicant is allowed in respect of the instant applicant, namely-Azim Premji.
-
2024 (6) TMI 120
Professional misconduct under Clause (7) of Part I of the Second Schedule of the Chartered Accountants Act - award of punishment of removal of the name of Respondent No. 1 from the Register of Members for a period of six months - Validity of the Appellate Authority's decision to overturn the Disciplinary Committee's findings - HELD THAT:- At the outset it is pertinent to mention that this Court while exercising its jurisdiction under Article 226 of the Constitution of India does not sit as an Appellate Authority. A writ court exercising its jurisdiction under Article 226 of the Constitution of India does not substitute its own conclusion to the one arrived at by any authority unless the decision is so perverse that no authority can come to such a conclusion or that the order is completely in contravention of any provision of any law be it an Act or the Regulation framed under the Act.
Applying the said law laid by the Apex Court in Ayurvedic Sciences & Anr. v. Bikartan Das & Ors. [2023 (8) TMI 1425 - SUPREME COURT] to the facts of the present case, the learned Counsel for the Petitioner has not been able to point out any specific Regulation or accounting standards which Respondent No. 1 has violated.
Whether the omission to mention that the net worth certificate was based on a provisional balance sheet constitutes professional misconduct? - HELD THAT:- The Chartered Accountant should indicate in his report or certificate on the basis of duly audited general purpose financial statements and he should take the precaution of clearly stating in his report or certificate the figures from the audited general purpose financial statements have been used and relied upon and a statement showing reconciliation between the figures in the general purpose financial statements and the figures appearing in his report or certificate - The Appellate Authority has come to an opinion that no guidelines have been violated. The Appellate Authority is of the opinion that the guidance note will not have a statutory aberration in following the guideline note is only a technical omission and will definitely not amount to misconduct.
The Appellate Authority has held that mere omission to mention that the net worth certificate is issued on the basis of provisional balance sheet does not attract any misconduct or otherwise as such omission is technical in nature. This Court is not inclined to interfere with the opinion of the Appellate Authority which consists of a retired Judge of a High Court and three expert members who have opined that the actions of Respondent No. 1 are not such that it would attract a penalty of removal of his name from the Register of Members for a period of six months.
This Court is not inclined to interfere with the order of the Appellate Authority which cannot be said to be perverse calling for interference under Article 226 of the Constitution of India. However, the Respondent No. 1 is directed to be more careful in future - Petition dismissed.
-
2024 (6) TMI 84
Legality and validity of the non-bailable warrant, issued against the company - legality questioned on the ground that the company is in moratorium under the provisions of the Insolvency and Bankruptcy Code, 2016 and being a legal entity, cannot beprosecuted for the offence under Section 138 of the NI Act - HELD THAT:- On the first day of hearing, when the notice was issued, the complainants had appeared by way of caveat.
In such circumstances, let fresh notice be issued to the complainants returnable on 19 July 2024.
-
2024 (6) TMI 39
Sample Collection and Testing in case of petrol pump - Compliance with Control Order and Agreement Terms - Validity of Termination of Dealership Agreement - HELD THAT:- As we have referred to earlier, the appellant(s) have placed strong reliance on the judgment of this Court in R.M. Service Centre [2019 (11) TMI 1828 - SUPREME COURT] held that any person who contravenes the Control Order is liable to be punished by the Court. Therefore, for a person to be prosecuted for violating the provisions relating to search and seizure contained in Clause (7) thereof, such a person will have to be brought to the book, particularly, for having violated the said Control Order.
In contrast, as has been submitted by the learned counsel for the appellants, the respondent was sought to be prosecuted only for the violation of the terms of the agreement inter se the parties and not for any other alleged violation, if any.
Thus, the submission of the respondents that R.M. Service Centre (supra) does not aid the case of the appellants, cannot be accepted. As already noticed, the respondent has not been prosecuted for violation of the Control Order. Reliance on Allied Motors [2011 (12) TMI 789 - SUPREME COURT] in our considered opinion, does not help the case of the respondent, for therein, what was alleged and ultimately held proved that the dealership was terminated without a show cause notice and in violation of principles of natural justice. That is not the pleaded case of the respondent herein.
In the present facts, the respondents have taken issue with the process of collection of samples, being aggrieved by the fact that a third party, namely, SGS India was appointed to take samples and not with the lack of service of notice or any other such non-compliance of the principles of natural justice.
That apart, the observations in National Insurance Company Ltd. v. Pranay Sethi [2017 (10) TMI 1276 - SUPREME COURT] tell us that in deference to judicial discipline and decorum, the judgments/orders passed by a coordinate Bench are to be respected by another Bench of co-equal strength. As such, we follow the holding in R.M. Service Centre [2019 (11) TMI 1828 - SUPREME COURT].
It stands clarified that we have taken note of and considered all contentions raised across the Bar, however, in view of the discussions, no other point survives for consideration. Consequentially, the appeals are allowed keeping in view that the termination of the agreement inter se the parties was only based on the contravention of the terms of the dealership agreement.
Pending application(s), if any, shall stand disposed of.
-
2024 (6) TMI 38
Refund of Stamp Duty paid towards an un-executed conveyance deed - Applicability of Section 47 (c) [1] and [5] of the Act and Rules 21 and 22A of the Bombay Stamp Rules, 1939 - HELD THAT:- Prima facie it appears that the appellant herein was pursuing her remedies in law and she was not lax in her approach towards seeking refund of the said stamp duty paid by her and she has been denied the same only on the ground of limitation.
The evidence required and enquiry to be made in terms of Section 47 of the Act is a separate process altogether and apropos circumstances for refund under Section 47 (c) [1] & [5] of the Act, evidence is not required to be filed along with the application- either the online application or separately on the same day by way of hard copy.
The legal position is thus settled in THE COMMITTEE-GFIL VERSUS LIBRA BUILDTECH PRIVATE LTD. AND ORS. [2015 (9) TMI 1759 - SUPREME COURT] that when the State deals with a citizen it should not ordinarily rely on technicalities, even though such defences may be open to it.
The case of the appellant is fit for refund of stamp duty in so far as it is settled law that the period of expiry of limitation prescribed under any law may bar the remedy but not the right and the appellant is held entitled to claim the refund of stamp duty amount on the basis of the fact that the appellant has been pursuing her case as per remedies available to her in law and she should not be denied the said refund merely on technicalities as the case of the appellant is a just one wherein she had in bonafide paid the stamp duty for registration but fraud was played on her by the Vendor which led to the cancellation of the conveyance deed.
The impugned order is set aside - appeal allowed.
-
2024 (6) TMI 37
Dishonour of cheque - Exemption from depositing amount u/s 148 of the NI Act - Waiver of compensation - conviction u/s 138 of the NI Act - imprisonment and compensation u/s 357 (3) of the CrPC - Powers of the Appellate Court in exercise of its power u/s 482 of the CrPC - HELD THAT:- In the present case, by an order dated 20.01.2020, the learned Appellate Court had directed the respondent no. 2 to make deposit of the 20% of the compensation amount. This order had been challenged by the respondent no. 2 by way of a petition before this Court. This Court considering the submissions made before it, had remanded the matter back to the learned Appellate Court for taking a fresh decision and allowed the respondent no. 2 to raise additional grounds in support of her application before the learned Appellate Court. Thereafter, the Respondent no. 2 filed a fresh application only to bring the additional grounds to the notice of the learned Appellate Court, for seeking exemption from making the deposit of the 20% as required u/s 148 of the NI Act. Therefore, no fault can be found in the respondent no. 2 filing an additional application and in the learned Appellate Court considering the same while passing the Impugned Order.
At the same time, the additional documents and plea that have been taken by the respondent no. 2 will be confined only for the purpose of the said application and shall have no effect or be considered at the time of the adjudication of the appeal that is pending adjudication before the learned Appellate Court. The application filed by respondent no. 2 seeking to place additional documents on record shall be determined by the learned Appellate Court on its own merits without being influenced by the adjudication of the application u/s 148 of the NI Act filed by respondent no. 2 or the present order.
In any event, the learned Appellate Court has given cogent reasons in the Impugned Order for granting exemption to the respondent no. 2 from making the deposit. This Court is not sitting in Appellate jurisdiction to such order. The power of the learned Appellate Court being discretionary in nature, and such discretion having been exercised on valid and cogent grounds, cannot be interfered with by this Court in exercise of its power u/s 482 of the Cr. P.C.
Therefore, find no merits in the present petition. The same is dismissed.
-
2024 (6) TMI 36
Dishonour of cheque - Seeking to Quash Complaint u/s 482 CrPC - Liability of the petitioner u/s 138 and 141 of the NI Act - Applicability of Section 28 of the NI Act - HELD THAT:- In the present case, the petitioner is the Chief Financial Officer, who, in terms of Section 2 (51) (iv) of the Companies Act, is a ‘Key Managerial Personnel’ of the Accused No. 1 company. The petitioner is also the signatory to the cheque in question. In the complaint, it is also stated that the petitioner was in charge and responsible for the conduct of the business of the company at the relevant time. In my view, therefore, the complaint satisfies the test of Section 141 of the NI Act for arraying the petitioner as an accused.
Signing of Cheque in the capacity of agent - Applicability of section 28 - HELD THAT:- The complaint does not lay its foundation u/s 28 of the NI Act to make the petitioner liable, but instead makes him liable u/s 141 of the NI Act. The petitioner is not to be impleaded as an Accused in the Complaint only in his position as an agent or signatory of the cheque. Therefore, the provision of Section 28 of the NI Act would not have any application to the facts of the present case.
Since the complaint satisfies the test of Section 141 of the NI Act and does not lay its foundation u/s 28 of the NI Act, the judgement of Sivagurunatha Pillai [1940 (12) TMI 33 - MADRAS HIGH COURT], as referred to by the counsel for the petitioner, does not apply to the present case.
The court found no merit in the petition and dismissed it, along with the application, as infructuous. The order clarified that it does not affect any defense the petitioner may present before the Trial Court.
-
2024 (6) TMI 35
Seeking Quashing of Complaints registered under sections 120B IPC read with section 7 and 7 (A) of the Prevention of Corruption Act, 1988 - Barred by Limitation u/s 468(2) CrPC - Preliminary Enquiry Requirement - Delayed Prosecution Sanction - Allegations of Mala Fides and Ulterior Motive - Violation of Law Relating to FIR, Arrest, Personal Search, and Trap Proceeding -
Requirement of Preliminary Enquiry:- HELD THAT:- It appears that preliminary enquiry is no longer mandatory when the FIR or complaint discloses commission of a cognizable offence and as such this court is unable to agree with the submission of Ms. Bordoloi, learned counsel for the petitioner. On the other hand, I find substance in the submission of Mr. Haloi, the learned counsel for the respondent No. 2 and the case law referred by him also strengthen his submissions. Therefore, this court is inclined to record concurrence with the submissions of Mr. Haloi.
Delayed prosecution sanction:- The record reveals that after completion of investigation the investigating officer had submitted charge sheet on 25.01.2023, under section 7 & 7A of Prevention of Corruption Act 1988 read with section 120 (B) IPC against the present petitioner along with Shri Avinash (A-3), Shri Mahabir Jain Shyamsukha (A-4) and supplementary charge sheet on 17.02.2023, against accused Shri Rajendra @ Amol D. Medhekar (A-2), to stand trial under section 120-B/419 IPC and under section 7 & 7 A of Prevention of Corruption Act 1988 and u/s 66B of Information Technology Act, 2000. But, the prosecution sanction, as it appears from the Annexure -’A’ of the additional affidavit of the respondent No. 1, dated 10.11.2023, to prosecute the petitioner was granted by the President on 17.08.2023, vide Sanction Order No. 05/2023.
Thus, there appears to be substance in the submission of Ms. Bordoloi, the learned counsel for the petitioner. But, what remains to be seen is what would be the consequence of violation of above timelines and can it be a ground for quashing the proceeding. Be it noted here that the learned counsel for the petitioner has canvassed this issue of violation of timeline as one of the grounds for quashing the petition.
This court is of the considered opinion that there is no merit in the submission of Ms. Bordoloi, the learned counsel for the petitioner. Accordingly, the same stands repudiated.
Mala fides, ulterior motive on the part of the informant to falsely implicate the petitioner:- Same principle is echoed in the case of M/s Zandu Pharmaceutical Works Ltd. vs. Md. Sharaful Haque & Anr. [2004 (11) TMI 519 - SUPREME COURT] also wherein Hon’ble Supreme Court has held that when an information is lodged at the police station and an offence is registered, then the mala-fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. Notably, in the mentioned case, Hon’ble Supreme Court has also taken into consideration its earlier decision in Bhajanlal (supra).
Violation of law relating to FIR, including delay, arrest, personal search, trap proceeding:- Though the learned counsel for the petitioner has submitted that the respondent CBI had violated the relevant provision of law relating to filing of FIR, arrest, personnel search, pre-trap and post trap proceeding and also pointed out about delay in lodging the FIR, yet, this court is of the considered view that these issues can be looked into at the trial not at this stage, as held in the case of Aryan Singh [2023 (4) TMI 1330 - SUPREME COURT] where it has been held that in an application for quashing of the criminal proceedings, while exercising the powers u/s 482 Cr. P.C., the Court is not required to conduct the mini trial.
This court is unable to derive its satisfaction that very exceptional circumstances or ‘rarest of rare case’ is found to be made out by the petitioner so as to invoke the extra ordinary jurisdiction of this court, u/s 482 Cr.P.C., as held in the case of Bhajan Lal (supra) [1990 (11) TMI 386 - SUPREME COURT] and in M/s Neeharika Infrastructure Pvt. Ltd. [2021 (4) TMI 1244 - SUPREME COURT]
In the result, I find no merit in this petition and accordingly, the same stands dismissed. The parties have to bear their own costs. Stay, if any, granted earlier, stands vacated.
-
2024 (6) TMI 34
Validity of arbitral award - invocation of jurisdiction of the Facilitation Council under Section 18 of the MSME Act - territorial jurisdiction of this Court to entertain this petition - exclusive jurisdiction clause contained in the agreement between the parties - seat of the arbitration in Delhi or Pathankot.
Whether the Agreement between the parties contains an exclusive jurisdiction clause for the purposes of the present petition? - HELD THAT:- It is found that, upon a proper interpretation of the contractual terms, the parties did not expressly provide for the seat of the arbitration under the Agreement, and only provided that the venue would be at the discretion of the arbitrator.
In Indian Oil Corporation [2019 (9) TMI 1701 - DELHI HIGH COURT], the arbitral proceedings were conducted by the Maharashtra Facilitation Council at Thane. The Division Bench nevertheless held that this Court had jurisdiction to entertain the petition under Section 34 the Arbitration Act, in view of an exclusive jurisdiction clause contained in the agreement between the parties therein, which was read as providing for exclusive jurisdiction of the Courts at New Delhi.
This judgment has been followed by the Division Bench in IRCON INTERNATIONAL LIMITED. VERSUS PIONEER FABRICATORS PVT. LTD. [2023 (3) TMI 1494 - DELHI HIGH COURT]. In the said case also, the concerned MSME Facilitation Council was located outside Delhi, but the agreement between the parties conferred exclusive jurisdiction upon the Courts in Delhi.
The aforesaid judgments of the Division Bench are applicable in cases where parties agree to confer exclusive jurisdiction for supervision of the arbitration proceedings, upon a particular Court in their contract. Both the judgments proceed on the basis that the exclusive jurisdiction clause in the agreements between the parties, would not be overridden by conferment of jurisdiction upon a particular MSME Facilitation Council under Section 18 of the MSME Act. For the reasons stated above, it is concluded that, in the present Agreement, there is no exclusive jurisdiction clause. The aforesaid judgments of the Division Bench are therefore inapplicable to the present case.
Whether the seat of the arbitration was, in any event, in Delhi? - HELD THAT:- The “seat” of arbitration is the place where the arbitral proceedings are anchored - the determination of jurisdiction under Sections 16 to 20 of the CPC for the purposes of filing a suit has no relevance - In the present case, the proceedings were admittedly conducted exclusively in Pathankot and the award was made there. There being no contrary indication, in the form of an exclusive jurisdiction clause or otherwise, to suggest that the seat of the arbitration was at any place other than the venue which was, even contractually, left to the learned Arbitrator to decide, there are no reason to depart from the general principle that, the seat of the arbitration was at the place where the arbitration was conducted, i.e., in Pathankot.
This Court does not have jurisdiction to entertain the present petition - Petition dismissed.
-
2024 (5) TMI 1489
Direction to Trial Court to conduct a de novo trial, while making certain observations against the Special Judge - disapproval of approach in the conduct of the trial - procedural Violations in Conducting the Trial - Imposition of a sentence by way of a legislation - existence of a prima facie case or not - HELD THAT:- The High Court, while passing both the impugned judgments, has not only called for the records and rendered findings of fact, but has also considered them in detail. At every stage, the accused was denied due opportunity to defend himself. The appellant judicial officer was obviously acting in utmost haste. Every trial is a journey towards the truth and a Presiding Officer is expected to create a balanced atmosphere in the mind of the prosecution and the defence. It seems that the decision was rendered in utmost haste.
It would be humanly impossible to deliver the judgment within half an hour’s time running into 27 pages consisting of 59 paragraphs in the first case and similarly in the other. The lawyer for the defence cannot fight against the court. It is the court which has to follow a balanced approach. At every stage, including framing of charges, there was a constant denial of due opportunity and hearing. The accused was not able to consult his lawyer. He was not even served with the copies, though his lawyer received the same before framing of the charges. Receiving of documents by his lawyer would not be sufficient compliance, unless there was sufficient time given for him to peruse them and thereafter have a consultation.
Admittedly, neither the provisions of the Witness Protection Scheme, 2018 have been invoked nor the Rules for Video Conferencing for Courts, 2020 were followed. The accused was merely shown the court’s proceedings and the writing was on the wall for him. It is not possible to say anything on the merits of the case.
On facts, even in Criminal Appeal No. 3925 of 2023, the trial had commenced and concluded in a single day. Additionally, no lawyer could be engaged by the accused and, therefore, as per the recommendations of the prosecutor, another one was engaged. Otherwise, the facts are more or less similar in both the cases and, therefore, we are not inclined to go into it in detail. When the charges are very serious, Courts should be more circumspect in discharging their solemn duty.
The decisions relied upon by the learned senior counsel for the appellant have no bearing on the present case. The appellant judicial officer is fortunate that no action was taken against him. Nothing more can be said on this, except by stating that in the absence of any proposed action, there is no question of hearing the appellant. Thus, it is not required to interfere on the merits of the case with respect to non-compliance of the mandatory provisions, as the accused is still under incarceration.
On the application filed seeking intervention over the action taken on the administrative side, it is for the appellant to approach the High Court. It is an administrative action taken and, therefore, the same does not require any interference on the judicial side, especially in light of the discussion made above. Suffice it is to state that liberty is given to the appellant to approach the High Court on the administrative side.
The trial court shall keep in mind the mandate of POCSO Act, 2012 while recording the evidence of the victim - the trial court shall conduct and complete the trial expeditiously in view of Section 35 of the POCSO Act, 2012 - the Government of India represented by the Secretary for the Ministry of Law and Justice shall file an affidavit on the feasibility of introducing a comprehensive sentencing policy and a report thereon, within a period of six months from today.
Appeal dismissed.
-
2024 (5) TMI 1486
Lapse of acquisition proceedings in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 - condonation of delay in filing appeals - Suppression of facts by the landowners - Change of law - Leeway to be granted to government entities - COVID-19 Pandemic - Supreme Court frowning upon the filing of fresh SLPs - Public interest and justice.
Condonation of delay in filing appeals - HELD THAT:- As is clear from a plain reading of Section 5 of the Limitation Act, there are exceptions to this general rule. The statute allows for admitting an action provided “sufficient cause” is shown. This vests courts with the discretion to extend the period of limitation if the applicant can show that he had sufficient cause for not preferring an appeal or application within the prescribed period. Section 5 requires analysis of two ingredients: first, an examination of whether “sufficient cause” has been made out; and second, whether such cause has been shown for not filing the appeal/application “within the prescribed period”.
While there is no arithmetical formula, through decades of judicial application, certain yardsticks for judging the sufficiency of cause for condonation of delay have evolved. Mere good cause is not sufficient enough to turn back the clock and allow resuscitation of a claim otherwise barred by delay. The court ought to be cautious while undertaking such an exercise, being circumspect against condoning delay which is attributable to the applicant - Causes arising after the culmination of the limitation period, despite being sufficient in substance, would not suffice for condonation given this second prong of Section 5 of the Limitation Act. However, the applicant shall not be required to prove each day’s delay till the date of filing such appeal/application.
Suppression of facts by the landowners - HELD THAT:- The respondent-landowners have not been called upon to refute or admit the allegations of concealment of facts attributed to some of them. Similarly, it is not asked the appellants to produce original records and documents to substantiate their allegation of concealment and suppression of material facts. It is conscious that entering into an arena of factual controversy at such an advanced stage of litigation, and that too without giving adequate opportunities to the parties can be a potential threat to the cause of justice. Simultaneously, the appellants’ contention in this regard cannot be brushed aside lightly.
The appellants have discharged a prima facie burden for the limited purpose of making out a case for condonation of delay in the cases mentioned in the appended ‘List-A’, which shall be read as a part of this judgment. We believe that a fact-finding exercise is necessary in these cases, and hence, there exist sufficient grounds for the condonation of delay. The nature of relief to be eventually granted after condoning the delay, will be separately dealt with in Part E of this order.
Change of law - HELD THAT:- The subsequent change of law will not be attracted unless a case is pending before the competent court awaiting its final adjudication. To say it differently, if a case has already been decided, it cannot be re-opened and re-decided solely on the basis of a new interpretation given to that law.
Leeway to be granted to government entities - HELD THAT:- If delay were to be condoned merely on the basis of a broad general assertion of bureaucratic indifference, without requiring demonstration of bona fide or an act of mala fide on the part of specific individuals, it would create an artificial distinction between the private parties and the government entities vis-à-vis the law of limitation. This would not be in conformity with the spirit of equality before law as guaranteed under our Constitution. Allowing such latitude would further distort incentives for the government and encourage more laxity by the bureaucracy in its general functioning, thereby undermining quality governance.
COVID-19 Pandemic - HELD THAT:- The benefit of IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2022 (1) TMI 385 - SC ORDER] can be availed by the appellants only in a case where the period of limitation expired between 15.03.2020 and 28.02.2022.
Supreme Court frowning upon the filing of fresh SLPs - HELD THAT:- Even if the appellants’ contention is believed to be true that some of the SLPs were dismissed on the strength of the then governing law as laid down in PUNE MUNICIPAL CORPORATION & ANR. VERSUS HARAKCHAND MISIRIMAL SOLANKI & ORS. [2014 (1) TMI 1643 - SUPREME COURT], this could not be an impediment for filing SLPs on time. Had it been so, this Court would not have had the opportunity to reconsider Pune Municipal Corporation and SREE BALAJI NAGAR RESIDENTIAL ASSOCIATION VERSUS STATE OF TAMIL NADU & ORS [2014 (9) TMI 941 - SUPREME COURT]. That apart, some of the cases which are part of this batch belies the appellants’ stance. Instead, it is likely that the appellants took a careful, considered and conscious call of not agitating their claims as they perceived their chances of success to be bleak.
Public interest and justice - HELD THAT:- The impact of not condoning the delay would thus be three-fold, which taken altogether make a compelling case for condonation of delay: one, there will be significant harm to the public at large by way of delayed infrastructure, in addition to financial loss to the public exchequer; second, the comparative benefit to landowners would not be substantial given that no indefeasible rights have been vested with them as the lis has not yet acquired quietus in most cases; and third, the matter would still not attain finality as the State is likely to invoke its power of eminent domain and reinitiate acquisition proceedings given the criticality of the infrastructure being built - the larger interest of justice mandates us to condone the delay in the present batch of cases.
The impugned judgment of the High Court in each case is set aside, and the acquisition of the respondents’ lands under 1894 Act is consequently upheld - Appeal allowed.
............
|
9911796707
