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Indian Laws - Case Laws
Showing 321 to 340 of 26755 Records
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2024 (5) TMI 1485
Shortfall in pre-deposit amount - HELD THAT:- The receipt of Rs. 1,60,600/- towards the Service Tax payment cannot be treated as payment for the purpose of pre— deposit. The receipt for the amount of Rs. 4750/- which is under the CGST payment cannot also be considered. However, the payment of Rs. 54,800/- is under the Central Excise and Service tax payment. It can be considered towards the pre-deposit.
Thus, there is short fall of pre-deposit. Let a fresh notice be issued to the appellant with a copy of this order mentioning therein that the appellant may make the deposit within a period of 6 weeks. In case the deposit is not made, an appropriate order may be passed for non-compliance of statutory requirement.
List on July 15, 2024.
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2024 (5) TMI 1478
Seeking grant of bail - offences punishable under Sections 8/22(c)/23/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- Considering the fact that the petitioner is also an accused in another matter which is registered against him under the NDPS Act, there are absolutely no reason to grant bail to the petitioner.
The Special Leave Petition is dismissed accordingly.
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2024 (5) TMI 1477
Seeking grant of bail - seizure of narcotic substance from the co-accused - non-compliance of the mandate contained in section 50 of the NDPS Act, 1985 - appraisal memo does not specifically inform the applicant that he has a legal right to be searched 'only' before the nearest Magistrate or Gazetted officer - despite the applicant not availing the right to be searched before the Magistrate or Gazetted officer, it was incumbent upon the NCB officials to conduct the search before the Gazetted officer - HELD THAT:- In the case at hand, the seizure was effected on 3rd October, 2021. The investigating officer, it appears, made an application before the jurisdictional Magistrate on 18th November, 2021. The proceedings before the learned Magistrate were conducted on 4th December, 2021. There is element of delay on the part of investigating officer, in seeking the certification of the inventory of the contraband and drawing of samples thereof.
In the case at hand, this interval of time between the seizure and inventory assumes significance in the context of the fact that the examination report issued by CFSL dated 21st February, 2022, indicates, inter alia, that the Exhibit M1, a transparent zip lock bag containing brown colour powder, stated to be 5 gm MD, was received for analysis, though the sample which was drawn from the contraband allegedly recovered from the person of the applicant was allegedly a white colour powder substance as recorded in the seizure panchanama. Prima facie, there is discrepancy in the description of the contraband which was allegedly seized from the applicant and sample collected therefrom, and the sample which was received for analysis by the CFSL.
As the identity of the sample is in the corridor of uncertainty, and the complicity of the applicant is primarily based on the seizure of the contraband from the applicant, a prima facie case to hold that eventually the applicant may not be found guilty of the offences can be said to have been made out.
In any event, the applicant has been in custody since 4th October, 2021. The applicant has been incarcerated for 2 and half years. There are substance in the submission of appellant that having regard to the number of accused arraigned in the crime, and the evidence which the prosecution may be required to be adduce to bring home the charge against the accused, it is extremely unlikely that the trial can be concluded within a reasonable period.
The Court is not informed that the applicant has antecedents. Thus, the Court may be justified in drawing an inference that the applicant may not indulge in identical activities if enlarged on bail - the applicant deserves to be enlarged on bail.
Bail application allowed.
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2024 (5) TMI 1463
Rejection of bail - offence punishable under Section 8 read with Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- On examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.
It is directed to enlarge the petitioner on bail on furnishing the suitable bail bonds and sureties and on such other terms and conditions as may be deemed fit by the trial Court - petition allowed.
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2024 (5) TMI 1455
Acquisition of property of respondent no. 1 in exercise of powers under Section 352 of the Kolkata Municipal Corporation Act, 1980 - power of compulsory acquisition of immovable property under Section 352 - Constitutional right to property under Article 300A - HELD THAT:- Section 352 does not provide for any procedure whatsoever, the contention that it contemplates the power of acquisition is rejected. Section 352 is only intended to enable the Municipal Commissioner to decide whether a land is to be acquired for public purpose. The power of acquisition is in fact vested with the State under Section 537 and it will exercise it, in its own discretion, whenever the Municipal Commissioner makes an application to that effect - the decision of the High Court agreed upon that Section 363 is not a provision for compensation for compulsory acquisition. In this context, we have also held that a valid power of acquisition coupled with the provision for fair compensation by itself would not complete and exhaust the power and process of acquisition. Prescription of the necessary procedures, before depriving a person of his property is an integral part of the ‘authority of law’, under Article 300A and, Section 352 of the Act contemplates no procedure whatsoever.
The High Court was fully justified in allowing the writ petition and rejecting the case of the appellant-Corporation acquiring land under Section 352 of the Act. The impugned judgment does not brook interference on any count.
Appeal dismissed.
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2024 (5) TMI 1451
Scope of review jurisdiction - error apparent on the face of the record - suppression of material fact in relating to the involvement of the respondents in the criminal cases by itself would incur the disqualification to be appointed to the post of constable and RSI - HELD THAT:- In PARSION DEVI AND OTHERS VERSUS SUMITRI DEVI AND OTHERS [1997 (10) TMI 369 - SUPREME COURT] the Hon’ble Apex Court observed that an error that is not self-evident and the one that has to be detected by the process of reasoning cannot be described as an error apparent on the face of the record for the Court to exercise the powers of review.
In LILY THOMAS, ETC. VERSUS UNION OF INDIA & ORS. [2000 (5) TMI 1045 - SUPREME COURT] the Hon’ble Apex Court held that the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.
In ARIBAM TULESHWAR SHARMA VERSUS ARIBAM PISHAK SHARMA [1979 (1) TMI 228 - SUPREME COURT], the Hon’ble Apex Court observed that there is nothing in Article 226 of the Constitution of India to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and pulpable errors committed by it. But there are definitive limits to the exercise of the power of review. It may be exercised where some mistake or error apparent on the face of the record is found. It may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits.
In KAMLESH VERMA VERSUS MAYAWATI & ORS. [2013 (8) TMI 912 - SUPREME COURT] after discussing various decisions on the scope of review jurisdiction, the Hon’ble Apex Court summarized the principles for exercise of the review jurisdiction, also laying down when the review would be maintainable and when not.
With respect to the scope of review it has repeatedly been held that in the exercise of review jurisdiction, neither the Court can sit in appeal nor it is open for review petitioner to reagitate and reargue the questions which had already been addressed and decided by the writ Court. It is not permissible to allow the review petition to be re-heard and decide as an appeal in disguise. The present review petitions are an effort in the nature of second commencement of re-hearing of writ petitions which is impermissible.
The judgments under review do not suffer from any apparent error of law - All the Review Petitions are dismissed.
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2024 (5) TMI 1445
Writ Petition - Common ancestor property - Partition land Possession and interference in a property between the plaintiff and the defendant - share of the plaintiff on being partitioned and is enjoying the same for the last more than three decades - Plaintiff is the sister of the defendant - Challenged the order passed by trial Court with the direction that the respondent is temporarily restrained from causing the obstruction in the cultivation of suit property till the disposal of main suit - The court also restrained respondent herein from creating third party interest or change the nature of the suit property for the purposes other than cultivation -
HELD THAT:- It is trite proposition of law that this Court while exercising power of superintendence will not interfere with the orders passed by the Courts unless there is manifest miscarriage of justice. This Court will not normally interfere even if there is some wrong committed on facts or law by the Courts below. Article 227 cannot be invoked only for the reason that the petitioner feels aggrieved of the order impugned in the petition. The compelling circumstances have to be made out by the aggrieved party against the order impugned in the petition requiring interference by the Court.
In Supreme Court case Radhey Shyam & Anr. Vs. Chhabi Nath & Ors. [2015 (7) TMI 376 - SUPREME COURT], it has been held that ‘an error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision’.
The court is not convinced that the orders passed by the Courts below require any interference of sort in the facts and circumstances of the case.
The learned trial Court has taken care of the controversy involved and issues which require determination in the suit in hand and also protected the rights of the parties. The appellate Court has confirmed the order of the trial Court with valid reasons.
Thus, the Court finds no reason to set aside the impugned order and allow the present petition. This petition is, accordingly, dismissed.
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2024 (5) TMI 1442
Dishonour of cheques - Two directors being a signatory of the cheques, has committed offence - Impleadment of the applicant as accused u/s 319 of CrPC - Non-service of statutory notice u/s 138(b) of N.I. Act - Delay in filing the application u/s 319 of CrPC - HELD THAT:- It is not in dispute that the applicant was in charge of and responsible to the conduct of business and the cheques were issued by the company allegedly signed by the applicant herein. Therefore, mere non mentioning of the name of the applicant in the complaint cannot be absolved him of the responsibility of the company as he has issued the cheques in question. Thus, therefore, the technical issue of non-serving of notice as contemplated u/s 138 (b) has no any merits as the principal accused-company and other two directors were served with statutory notice and in view of the status of the applicant in the company and being a signatory of the cheques was deemed to be aware of the receipt of the notice by the company.
Thus, the ratio of the Apex Court laid down in Krisha Texport and Capital Markets [2015 (6) TMI 344 - SUPREME COURT] and considering the peculiar facts and circumstances of present case, the prosecution against the applicant without serving the statutory notice is maintainable and trial court has rightly recorded the findings that, the notice to the applicant is not necessary and prosecution can be proceeded without it.
The second contention raised is that, the impleadment of the accused u/s 319 of the CrPC for the offence punishable u/s 138 could not have entertained after the expiry of statutory period.
When the application u/s 319 of CrPC was allowed, the trial court has not taken a cognizance of the offence. The contention with regard to limitation would be applicable only in case the court has taken cognizance of the offence. If the application of impleadment of the applicant would have filed after taking cognizance of the offence, then, the issue of limitation would come into picture.
In the facts of present case, at the time of passing the order u/s 319, the trial court has not taken cognizance of the offence and at the enquiry stage, the application was entertained. Thus, before taking cognizance in terms of Section 142 of the N.I. Act, the trial court could implead the accused u/s 319 of CrPC and plea of limitation at that stage was not require to be considered nor it is applicable.
Thus, this Court is of considered opinion that, the order passed by the trial court cannot be termed as unsustainable or abuse to the process of law which do not warrant any interference as no ground is made out to quash the same.
Resultantly, the application stands dismissed. Rule is discharged.
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2024 (5) TMI 1438
Dishonor of cheques - Offences punishable u/s 138 of the Negotiable Instruments Act - Joint trial of cases - material alteration of cheques - statutory presumptions - burden of proof - HELD THAT:- 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.
There is a specific finding in the trial court judgment that Exhibit P2 cheque is materially altered by the complainant and that the same was originally issued for Rs.50,000/- and later altered and fabricated to one for Rs.7,50,000/- by the complainant and on that ground, the accused was acquitted in C.C and the said judgment has already become final. It is also pertinent to note that the trial court has also recorded a finding that the evidence of DW1 that Exhibit D1 is the receipt issued by the complainant to the accused for payment of Rs.3,50,000/- after the issuance of Exhibit P1 cheque and the said finding is also approved in the impugned judgment and considering the facts and circumstances, I find no reason to interfere with the said concurrent findings.
When the evidence of DW1 and Exhibit D1 receipt proves payment of Rs.3,50,000/- by the accused to the complainant in partial discharge of the earlier liability of Rs.4,00,000/- as per Exhibit P1 cheque and when it is in evidence that the accused has subsequently issued Exhibit P2 cheque for Rs.50,000/- for the balance amount, it cannot be held that Exhibit P1 cheque represent a legally enforceable debt at the time of encashment.
Therefore, in the absence of any satisfactory evidence to show that Exhibit P1 cheque is supported by a legally enforceable debt at the time when the same was presented for collection, I find 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, I find that this appeal is liable to be dismissed.
In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed.
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2024 (5) TMI 1431
Dishonor of cheque - Appeal against acquittal u/s 138 of NI Act - rebutting statutory presumptions u/s 118 and 139 of NI Act - cheque in a different handwriting and ink - no satisfactory evidence to show that the cheque was issued in discharge of a legally enforceable debt - HELD THAT:- The evidence of PW2, who is the son-in-law of the complainant, shows that he went abroad on 09.03.2003 and returned only on 22.07.2005. The learned counsel for the first respondent pointed out that Exhibit P1 cheque is dated 15.03.2004 and therefore, it can be seen that PW2 was abroad during the validity of Exhibit P1 cheque and that will probabilise the case of the defence that Exhibit P1 cheque was originally entrusted as security in connection with Exhibit D1 transaction and that the complainant materially altered the said cheque by adding his name as payee without the knowledge and consent of the accused and therefore, there is no reason to interfere with the finding of the trial court in this regard.
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.
The specific case of the accused/first respondent is that he has not issued any cheque to the complainant and no amount was due from the accused to the complainant and that Exhibit P1 cheque was entrusted as security in connection with Exhibit D1 agreement to the son-in-law of the complainant and the same was misused by the complainant after materially altering the same by inserting the name of the complainant as payee in the cheque without the knowledge and consent of the accused.
It is pertinent to note that the evidence of PW1 in cross examination would clearly show that he has no definite case as to whether the amount is due to the complainant or to his son-in-law and further, it is in evidence that PW2, the son in law of the complainant, was abroad from 09.03.2003 to 22.07.2005 and therefore, considering the facts and circumstances I find 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 that there is no satisfactory evidence to show that Exhibit P1 cheque was issued in discharge of a legally enforceable debt from the side of the accused to the complainant and in that circumstance, I find that this appeal is liable to be dismissed.
In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed.
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2024 (5) TMI 1424
Dishonor of Cheque - Challenged the judgments of conviction u/s 138 of Negotiable Instruments Act - Suspension of sentence u/s 389 CrPC, reason for directing deposit of 20% of fine - HELD THAT:- In the impugned order, the Sessions Judge did not assign sufficient reason while ordering a deposit of 20% of the amount of compensation imposed by the Trial Court. The Sessions Court has also not considered whether the case of the petitioner fell in the exception or not. Therefore, the orders impugned to the extent it directed the petitioner to deposit 20% of the amount of compensation imposed by the trial court stand set aside. The Sessions Court is directed to reconsider the applications afresh after affording opportunity of hearing to both sides within a period of one month from the date of receipt of a copy of this judgment.
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2024 (5) TMI 1402
Entitlement of the plaintiff to recover the suit amount along with interest - Existence of cause of action for the plaintiff - Clean hands of the plaintiff in approaching the court - Privity of contract between the parties - Suit being bad for non-joinder and mis-joinder of necessary parties - HELD THAT:- As noticed by the Courts below, the total claim of the plaintiff against the 1st defendant was Rs.19,75,146.24 ps, from which, Rs.5 lacs was paid through four cheques by the 1st defendant to the plaintiff and a further sum of Rs.5 lacs had been paid for compromise in the Complaint filed under Section 138 of the N.I. Act by the 1st defendant to the plaintiff. The balance claim of the plaintiff is Rs.9,75,146.24.
No doubt, the plaintiff placed reliance on Ex.PW-1/D, final bill, but the said final bill appears to have been generated after the construction was completed and it was not even signed by the plaintiff or the 1st defendant. So no reliance could have been placed on it by the plaintiff.
If the plaintiff's claim is that various items of work done by him for construction of the house of the 1st defendant was agreed to be done at the market rates, he should have adduced evidence about the market rate of each item of work, but he has not chosen to do so.
It is settled law that stipulations and terms of the contract have to be certain and the parties must have been consensus ad idem. The acceptance must be absolute and must correspond with the terms of the offer. The burden of showing the stipulations and terms of the contract, and that the minds where ad idem, is on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there is no contract at all (Mayawanti vs. Kaushlya Devi) [1990 (4) TMI 304 - SUPREME COURT]
Since the claim of the plaintiff is with regard to the distinct items of work said to have been executed by him for the 1st defendant, burden was on him to establish the rate of each item of work, for which, there is no evidence adduced by him.
Therefore, though I hold that there is privity of contract between the parties, I hold that that the trial Court as well as the First Appellate Court were not right in decreeing the suit in favour of the plaintiff on the basis of the unilateral document Ex.PW-1/D, more particularly when the plaintiff had not produced a single original bill, voucher or material to establish the amount of expenditure incurred by the plaintiff towards executing various items of work for constructing the house of the 1st defendant.
In my opinion, the judgments of the trial Court as well as the lower Appellate Court are perverse and cannot be sustained. Substantial questions of law (1) and (2) are answered in favour of the respondent but substantial questions of law (3) and (4) are answered in favour of the appellants.
Accordingly, this Regular Second Appeal is allowed and the judgments of the trial Court as well as the lower Appellate Court are set-aside.
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2024 (5) TMI 1388
Jurisdiction of Sub-Registrar to refuse registration of a sale certificate due to pending Income Tax dues against the borrowers - Sale certificate - Whether the SARFAESI Act has precedence over other statutory dues, including those of the Income Tax Department - Petitioner purchased a property in a public auction conducted by Canara Bank (3rd respondent) under the SARFAESI Act - Sub-Registrar refused registration citing pending Income Tax dues against the borrowers.
HELD THAT:- The Apex Court in the case of Punjab National Bank v. Union of India [2022 (2) TMI 1171 - SUPREME COURT], considering the entire spectrum of law holds that dues of the secured creditor, the Bank or any other financial institution will have priority over the dues of the Central Excise Department under the Central Excise Act. The Apex Court holds the provisions of the SARFAESI Act, 2002 will have overriding effect on the provisions of the Central Excise Act. If the Central Excise Act found in the judgment of the Apex Court is paraphrased with that of the Income-Tax Department/dues under the Income-Tax Act, the reasons so rendered by the Apex Court would become applicable to the facts of the case at hand as well. The Sub-Registrar, though not in writing, orally refused to register the document on the score that dues of the Income-Tax Department are pending against the borrowers, is a reason which is unavailable to the Sub-Registrar, even if it were to be in writing.
The Sub-Registrar can act only within the four corners of the Registration Act and the Registration Rules framed by the State.
The Sub-Registrars refuse to register the documents - the documents could be sale certificates or documents creating charge over the property. The Sub-Registrars, on grounds that are not available to them, refuse to register the documents, sometimes on the score that the software in the Registration Department or the Sub-Registrar's office is not made to be in tune with the necessities of registration of documents of the Banks and therefore, it is not registered and in certain cases, it is the statutory dues by the borrower or the holder of the document, which are not cleared and therefore, would not be registered. All these are reasons beyond the statute. Unless the Sub-Registrar notices any violation as obtaining under Rule 171 of the Rules, the Sub-Registrar does not have jurisdiction to refuse registration of a document.
Therefore, it is necessary for the State Government to issue necessary circular in terms of Rule 171 of the Rules and the law laid down by the Apex Court in the judgment supra, so that every person who goes for registration of documents should not be denied registration except in accordance with the observations supra as acts of Sub-Registrars are driving every person who is denied registration to the doors of this Court unnecessarily and if the Sub-Registrar would not register a document, if it is found to be in tune with law, the delay in registration would be attributable only to those Sub-Registrars, who will be saddled with exemplary costs when such cases are brought before this Court seeking a direction for registration of a document.
Thus, writ petition is allowed.
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2024 (5) TMI 1324
Validity of the Agreement to Sell - Purchase of land - Non-Appearance of Plaintiff as a Witness - Discretionary Relief of Specific Performance - Limitation Period for Filing the Suit - Appellant/plaintiff entered into an agreement to sell land with respondent no. 4, acting as Power of Attorney holder for respondents/defendant nos. 2 to 11 - agreement extended multiple times.
HELD THAT:- It is mentioned in the agreement that Gajay Bahadur Bakshi would be responsible for getting the sale deed executed and registered by all the coowners or co-khatedars at the time of registration. Neither the names of all the co-owners/coparceners/co-khatedars are mentioned in the agreement, thus, the High Court is right in finding that all the co-owners have not signed the agreement. The subsequent endorsement of receipt of additional amount of Rs. 40,000/- is also not signed by all the co-parceners. The same is the condition with the 3rd agreement dated 26.12.1996 and the extension endorsement dated 27.03.1997 and 23.04.1997.
Significantly, the so-called power of attorney pleaded in the plaint through which the defendant nos. 2 to 11 authorised defendant no. 1 to execute the agreement, have not been produced and proved in the Trial Court. Thus, neither in the agreement nor in course of trial the power of attorney is proved by tendering the same in evidence. Hence, in the absence of evidence, the High Court rightly held that the agreement is not signed by all the co-owners.
Undisputedly, in the present case, the plaintiff failed to appear in the witness box. Instead, his Power of Attorney Holder got himself examined as PW-1. This witness was examined on 05.09.2002 and the power of attorney was executed on 26.08.2002. It is not a case where the suit itself was filed by a Power of Attorney Holder. He appeared subsequently only for recording his evidence as the Special Power of Attorney Holder of the plaintiff. The legal position as to when the deposition of a Power of Attorney Holder can be read in evidence has been dealt with by this Court in several decisions.
In the instant case, the plaintiff/appellant has failed to enter into the witness box and subject himself to cross-examination, he has not been able to prove the prerequisites of Section 12 of the Specific Relief Act,1963 and more so, when the original agreement contained a definite time for registration of sale deed which was later on extended but the suit was filed on the last date of limitation calculated on the basis of the last extended time.
The plaintiff entered into an agreement with only one of the co-owners and thereafter sought extensions for execution of the sale deed but did not prefer any suit though he was aware of the sale deed dated 14.05.1997 executed in favour of defendant nos. 12 to 14 and sent a legal notice on 30.05.1997 and even objected to the subsequent purchasers’ application for mutation of their names in the revenue records on 20.08.1997 and refers to a meeting of the Gram Panchayat dated 06.12.1997, yet the suit was preferred, on 09.05.2000 on the last date of limitation.
Thus, the suit having been preferred after a long delay, the plaintiff is not entitled for specific performance on this ground also.
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2024 (5) TMI 1323
Bank Loan - Proposal for declaring the company as "Fraud" - Violation of principles of natural justice - non-compliance with the agreed terms of the loan documents and various irregularities in the loan account - suspicion of fraudulent activities in the account - HELD THAT:- This Court passed various directions directing the petitioner to approach the respective banks with a list of documents that were required by the petitioner for the purpose of submitting a comprehensive reply to the said SCNs. Upon the petitioner approaching the said banks, certain documents were provided to the petitioner. However, it is the case of the petitioner that complete documents, on the basis of which SCNs have been issued to the petitioner, have not been provided.
It is settled law that fair procedure and the Principles of Natural Justice require that the requisite documents, which form the basis of a SCN, ought to be provided to the concerned party in order to enable such party to submit a proper reply to answer all the allegations raised against it. If the relevant documents are not provided to a party, then, the whole procedure of issuance of a SCN and filing a reply thereto, would be reduced to an empty formality. No party can be expected to respond to a SCN in an effective manner, in the absence of the underlying documents, which form the basis of the said SCN.
Similarly, in the case of T. TAKANO VERSUS SECURITIES AND EXCHANGE BOARD OF INDIA & ANR. [2022 (2) TMI 907 - SUPREME COURT], the Supreme Court has held in categorical terms that it would be fundamentally contrary to the Principles of Natural Justice, if the relevant materials were not disclosed to the noticee.
The relevant documents that form the basis of issuance of a SCN, ought to be provided to the concerned party in order to enable such a party to raise its defense effectively. Such fundamental right of a party cannot be taken away by denying a proper opportunity to submit an efficacious reply, which would not be feasible in the absence of requisite documents that form the core foundation of a SCN. This assumes all the more importance, as on the basis of the defense raised by such a party, proceedings thereto, against the said party, may be dropped in appropriate cases.
The petitioner and/or his authorized representative shall be allowed inspection of the records of the company, as available with the lead bank, i.e., SBI - Since, record of the company is also stated to be in the possession of the RP, it is directed that the petitioner and/or his authorized representative shall also be allowed to inspect of the record of the company, as available with the RP.
The writ petition is disposed off.
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2024 (5) TMI 1322
Challenged the order passed u/s 482 of CrPC - Cancellation of the Non Bailable Warrants [NBW’s] - denial of bail - HELD THAT:- In peculiar facts of this case, while filing the application u/s 70(2) of the Code of Criminal Procedure, the specific stand was taken that the non appearance, was on account of the ailment of the petitioner-accused and once this fact has not been denied or controverted by the non-applicant/complainant, therefore, on this ground also, the Impugned Order dated 23.04.2024, by recording the findings that the Learned Trial Court was not satisfied with the grounds so taken, is vitiated by non-application of mind; when, the plea was not denied/or is admitted by the non-applicant - complainant also.
Thus, the impugned order dated 23.04.2024, passed by the Learned Trial Court i.e. Learned Chief Judicial Magistrate, Bilaspur, is quashed and set aside.
Since the petitioner-accused is in judicial custody , therefore, the Respondents/State Authorities are directed to release the petitioner-accused [Dipender Thakur] from custody, on furnishing a personal bond of Rs. 25,000/- with one surety in the like amount to the satisfaction of the Learned Trial Court.
Thus, the instant petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of , accordingly.
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2024 (5) TMI 1321
Seeking to Quash proceedings u/s 138 of the Negotiable Instruments Act - failure to implead the company as an accused - non-maintainability of the complaint against the petitioner - compliance of the provision u/s 202 CrPC - HELD THAT:- Admittedly the accused’s only address is clearly is beyond the jurisdiction of the trial Court being the Court at District – Malda. The proceedings in this case is u/s 138 of the Negotiable Instruments Act.
Following the Five Judge Bench of the Supreme Court in expeditious trial of cases, it is clear that Section 202(2) CrPC is not applicable in the present proceedings which is u/s 138 N.I. Act.
Document annexed to the supplementary affidavit filed by the petitioner shows that the complainant served Notice dated 30.11.2016 u/s 138 N.I. Act upon the Petitioner and also the Company ‘Amrit Feeds Limited’. Copy of the cheque dated 17.08.2016 shows that the said cheque was also issued by the petitioner on behalf of the company and not from his personal account.
Thus not impleading the company in this case along with the petitioner, being the Managing Director of the complaint, makes the complaint in this case not maintainable.
In the present case:- a) The company has not been made an accused nor was any notice served upon the company, though the cheque was issued on behalf of the company.
b) The petitioner has been made an accused as the person, who signed and issued the cheque.
Therefore, in the absence of the company being arraigned as an accused, a complaint against the petitioner is not maintainable Himanshu vs. B. Shivamurthy & Anr. [2019 (3) TMI 294 - SUPREME COURT].
CRR is allowed - The proceedings in connection with Complaint Case u/s 138 of the Negotiable Instruments Act, pending before the Court of the Learned Judicial Magistrate, Malda and all orders passed therein in connection with the above mentioned complaint case, is hereby quashed in respect of the petitioner.
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2024 (5) TMI 1320
Dishonor of cheque - Challenged the acquittal of the respondent/accused u/s 138 of the Negotiable Instruments Act - cheque issued for repayment of borrowed hand loan - legal notice served, but no response received - Accused contested the case but failed to rebut the allegations - HELD THAT:-Admittedly, complainant has not produced any documents to show that the produce of previous year was kept in consignment and also it was sold immediately prior to the alleged lending of Rs.6 lakhs and complainant was in possession of the same. Thus, the complainant has failed to prove her financial capacity to lend Rs.6 lakhs to the accused.
In the complaint the complainant has not stated the date on which the hand loan was advanced to the accused. It is only stated that towards repayment of the said amount, accused issued cheque dated 10.01.2013. However, during her cross-examination complainant has stated that accused requested hand loan in the month of November 2013 and she paid the amount on 15.12.2013. As noted earlier, the subject cheque i.e., Ex.P1 is dated 10.01.2013 which creates doubt as to whether Ex.P1 cheque was issued towards alleged transaction or it was already available with the complainant.
This fact assumes importance as the accused has taken up a specific defence that complainant, Smt.Kalavathi - the wife of accused and other women were running chit fund and at that time complainant had taken a blank cheque belonging to the accused and though the wife of accused has paid the amount due under the chit transaction, the subject cheque belonging to the accused remained with the complainant and misusing the same, she has filed the complaint. Ex.D1 is the pass book of account maintained by Smt.Kalavathi in Syndicate Bank. It shows withdrawal of Rs.20,000/- on 27.08.2012 and Rs.45,000/- on 25.09.2012 by Smt.Geetha H.K i.e., the complainant. This supports the defence of the accused that there were some chit transaction between his wife Smt.Kalavathi and complainant Smt.Geetha H.K.
The contents of Ex.P1 cheque also supports the defence of the accused that except his signature, the rest of the contents are not in his handwriting. From the manner in which the accused has affixed his signature in Kannada, indicates that except the signature, rest of the contents are not in his handwriting. In fact the remaining writing in the cheque tally with the handwriting/signature of the complainant.
Thus, when the complainant has failed to prove her financial capacity, as held in APS Forex [2020 (2) TMI 629 - SUPREME COURT], the burden would not shift on the accused to rebut the presumption. Despite the same, through his oral and documentary evidence placed on record and in the light of cross - examination of PW-1, the accused has probabilised his defence.
Considering the oral and documentary evidence placed on record, the trial Court has come to a correct conclusion that allegations against accused are not proved and acquitted him. After re-appreciation of the entire material placed on record, this Court is of the considered opinion that it is not a fit case to interfere with the impugned judgment and order passed by the trial Court.
In the result, the appeal fails and accordingly - Appeal filed by the complainant u/s 378(4) of CrPC is dismissed - The impugned judgment and order dated 30.07.2015 in C.C. on the file of II Addl.Civil Judge and JMFC, is hereby confirmed.
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2024 (5) TMI 1319
Condonation of Delay in filing the appeal for the enhancement of compensation - Applicability of Limitation Act provisions - Discretionary Power of Courts in condoning delay - HELD THAT:- It is very elementary and well understood that courts should not adopt an injustice-oriented approach in dealing with the applications for condonation of the delay in filing appeals and rather follow a pragmatic line to advance substantial justice.
It may be important to point out that though on one hand, Section 5 of the Limitation Act is to be construed liberally, but on the other hand, Section 3 of the Limitation Act, being a substantive law of mandatory nature has to be interpreted in a strict sense.
In Bhag Mal alias Ram Bux and Ors. vs. Munshi (Dead) by LRs. and Ors [2007 (1) TMI 544 - SUPREME COURT], it has been observed that different provisions of Limitation Act may require different construction, as for example, the court exercises its power in a given case liberally in condoning the delay in filing the appeal u/s 5 of the Limitation Act, however, the same may not be true while construing Section 3 of the Limitation Act. It, therefore, follows that though liberal interpretation has to be given in construing Section 5 of the Limitation Act but not in applying Section 3 of the Limitation Act, which has to be construed strictly.
It must always be borne in mind that while construing ‘sufficient cause’ in deciding application u/s 5 of the Act, that on the expiry of the period of limitation prescribed for filing an appeal, substantive right in favour of a decree-holder accrues and this right ought not to be lightly disturbed. The decree-holder treats the decree to be binding with the lapse of time and may proceed on such assumption creating new rights.
In the absence of the facts for getting the delay condoned in the referred cases, vis-à-vis, the facts of this case, it cannot be said that the facts or the reasons of getting the delay condoned are identical or similar. Therefore, we are unable to exercise our discretionary power of condoning the delay in filing the appeal on parity with the above order(s).
Moreover, the High Court, in the facts of this case, has not found it fit to exercise its discretionary jurisdiction of condoning the delay. There is no occasion for us to interfere with the discretion so exercised by the High Court for the reasons recorded. First, the claimants were negligent in pursuing the reference and then in filing the proposed appeal. Secondly, most of the claimants have accepted the decision of the reference court. Thirdly, in the event the petitioners have not been substituted and made party to the reference before its decision, they could have applied for procedural review which they never did. Thus, there is apparently no due diligence on their part in pursuing the matter. Accordingly, in our opinion, High Court is justified in refusing to condone the delay in filing the appeal.
Thus, we do not deem it proper and necessary to interfere with the decision of the High Court refusing to condone the inordinate delay in filing the proposed appeal.
The Special Leave Petition, as such, lacks merit and is dismissed.
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2024 (5) TMI 1266
Distribution and supply of electricity - Legality of the imposition of a reliability charge on account of Zero Load Shedding (ZLS) by a distribution licensee under the Electricity Act, 2003 - Whether the 1st respondent was liable to pay the reliability charge - HELD THAT:- It cannot be disputed that the 1st respondent was directly affected by the levy of the reliability charge. Hence, the first respondent was the person aggrieved within the meaning of Section 111. In the appeal, the appellant was entitled to challenge the legality of the impugned order of the Commission. Nothing in the 2003 Act suggests that a consumer who does not participate in the Commission's public hearing and is aggrieved by an order of the Commission is disentitled to prefer an appeal.
It is an admitted position that 1st respondent, a continuous process industry on express feeder, paid a higher tariff during the relevant period of July 2009 to April 2010 to enable it to get supply without load-shedding.
We find no error in the view taken by the Tribunal that the appellant was not entitled to impose a reliability charge on customers like the 1st respondent.
Hence, we find no merit in the appeal, and the same is dismissed.
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