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Indian Laws - Case Laws
Showing 341 to 360 of 26755 Records
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2024 (5) TMI 1265
Dishonour of cheques - Interpretation of Section 219 of the CrPC - consolidation of multiple offences in a complaint u/s 138 of the Negotiable Instruments Act, 1881 (NI Act) - single/combined complaint filed for the dishonour of four cheques, after sending a single/combined legal notice of demand - HELD THAT:- The Constitution Bench judgment of the Supreme Court in Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, [2021 (4) TMI 702 - SUPREME COURT], wherein, the Supreme Court, while upholding the course adopted by the Supreme Court in Vani Agro Enterprises [2019 (9) TMI 1711 - SUPREME COURT], recommended that a provision be made in the NI Act to the effect that a person can be tried in one trial for offences of the same kind u/S 138 of the NI Act in the space of 12 months, notwithstanding the restriction in Section 219 of the Cr. P.C. However, it did not consider the case where post the dishonour of more than three cheques, a single notice of demand is sent by the payee or the holder in due course of the cheque to the drawer of the cheque. On the other hand, it further held that there is no ambiguity in Section 220 of the Cr. P.C. in accordance with which several cheques issued as part of the same transaction can be the subject matter of one trial.
This judgment clarifies the application of Section 219 of the Cr. P.C. in cases of dishonour of multiple cheques and emphasizes the importance of the cause of action in determining the maintainability of a complaint u/s 138 of the NI Act.
Appeal is dismissed.
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2024 (5) TMI 1264
Allegation against Public servant abusing his official position earned huge amount and the same were deposited in bank accounts opened in the name of certain non-existent/non functional companies/firm registered and in the name of his family members - Acceptance of the Final Report u/s 173 CrPC by the trial court - Discharge the accused - Scope of the directions of CVC - Application for further investigation by CBI after 5years - petitioner’s case is that he is a member of Indian Revenue Services, and is presently posted as the Commissioner of Income Tax -
HELD THAT:- It appears that the prayer dated 24.06.2019 for further investigation was made by the CBI on the basis of CVC’s report dated 31.01.2014 (as no other report by the CVC has been placed before this Court), but the CVC’s recommendation in the said report is only for departmental action for major penalty. There is no other recommendation, more so reason/nor recommendation/or grounds for further investigation.
As to what prompted the CBI to pray for further investigation after five years of the CVC’s said report, was not considered by the trial Judge.
Paragraph 8 of the application for further investigation dated 24.06.2019 filed by the CBI is vague and clearly not as per the CVC’s report dated 31.01.2014. In the application dated 24.06.2019, the grounds for further investigation in paragraph 9 also relate to the initial investigation which ended in FRT, wherein the same points were investigated but no evidence was found to substantiate the allegation in the FIR.
No new evidence or material was placed before the trial Judge to justify allowing the prayer for further investigation.
The order dated 27.06.2019 (certified copy) permitting further investigation does not give any reasons/grounds as to why such a prayer is being allowed, which is clearly an abuse of the process of law and thus against the principles of interest of justice.
It is unfortunate that now after almost 5 (five) years, the status report dated 20.11.2023 filed by the CBI, shows that the further investigation has not led to any fruitful result. Be that as it may, in the present case, Order dated 27.06.19 permitting further investigation is by itself not in accordance with law, as the prayer for further investigation is beyond the report/recommendation of the CVC on which the prayer for further investigation was allegedly based.
CRR 459 of 2020 is thus allowed. The Order dated 27.06.2019 passed by the Learned Judge Court, Calcutta dated 25.11.2010 thereby granting liberty to the prosecution to conduct further investigation, is set aside/quashed.
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2024 (5) TMI 1219
Dishonour of Cheque - insufficient funds - settlement of disputes between the parties - compounding of offence u/s 138 N.I. Act - HELD THAT:- This Hon’ble Court in ‘Ramesh Chander Vs. State of Haryana and another [2006 (8) TMI 685 - PUNJAB AND HARYANA HIGH COURT] held that 'The compounding of the offence under Section 138 can be done during the trial of the case as well as by the High Court or Court of Session while acting in the exercise of its power of revision under Section 401 Criminal Procedure Code Reference may be made to Section 320(6) Criminal Procedure Code in this regard.'
This Court in Vatsa Electronics Vs. Pala Ram & Anr. [2022 (4) TMI 353 - PUNJAB AND HARYANA HIGH COURT] has also held that once a settlement is being effected, then in terms of Section 147 of the Negotiable Instruments Act and Section 320 Cr.P.C., the accused ought to be acquitted as the offence stands compounded.
Since, the parties have voluntarily settled the disputes between themselves, it is a fit case for allowing them to compound the offence.
The revision petition is allowed and subject to payment of 15% of the cheque amount to be deposited with Spinal Rehab Centre, Chandigarh Plot No.1, Madhya Marg, Sector 28- A, Chandigarh, as well as the judgment of conviction and order of sentence passed by the Judicial Magistrate 1st Class, Pehowa, are hereby set aside. The petitioner is acquitted of the charge under Section 138 of the Negotiable Instruments Act.
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2024 (5) TMI 1190
Writ jurisdiction of the High Court post privatization - respondent No.3(AIL) taken over by a private corporate entity - non-suit on account of the fact that during pendency of their writ petitions - nature of the employer changed from a Government entity to a private entity - delay in disposal of the writ petition could be treated a valid ground to sustain the claim of the appellants even against the private entity.
Whether respondent No.3(AIL) after having been taken over by a private corporate entity could have been subjected to writ jurisdiction of the High Court? - HELD THAT:- The employee-writ petitioner filed a writ petition before the Delhi High Court to challenge his termination wherein, a preliminary objection was raised regarding maintainability of the writ petition on the ground that during pendency of the proceedings, the company had changed hands and no longer retained the characteristic of a ‘State’ or ‘Other authority’ as defined under Article 12 of the Constitution of India. The assertion of the writ petitioner was that the petition was maintainable against the respondent on the date it was filed. As per the writ petitioner, the rights and obligations of the parties stood crystallized on the date of commencement of litigation and thus, the reliefs should be decided with reference to the date on which the party entered the portals of the Court.
Various High Courts across the country have taken a consistent view over a period of time on the pertinent question presented for consideration that the subsequent event i.e. the disinvestment of the Government company and its devolution into a private company would make the company immune from being subjected to writ jurisdiction under Article 226 of the Constitution of India, even if the litigant had entered the portals of the Court while the employer was the Government.
Whether the appellants herein could have been non-suited on account of the fact that during pendency of their writ petitions, the nature of the employer changed from a Government entity to a private entity? - HELD THAT:- The issue about exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution of India would arise only on the date when the writ petitions were taken up for consideration and decision. The respondent No.3(AIL)- employer was a government entity on the date of filing of the writ petitions, which came to be decided after a significant delay by which time, the company had been disinvested and taken over by a private player. Since, respondent No.3 employer had been disinvested and had assumed the character of a private entity not performing any public function, the High Court could not have exercised the extra ordinary writ jurisdiction to issue a writ to such private entity. The learned Division Bench has taken care to protect the rights of the appellants to seek remedy and thus, it cannot be said that the appellants have been non-suited in the case. It is only that the appellants would have to approach another forum for seeking their remedy - the issue decided against appellant.
Whether the delay in disposal of the writ petition could be treated a valid ground to sustain the claim of the appellants even against the private entity? - HELD THAT:- The delay in disposal of the writ petitions could have been a ground to continue with and maintain the writ petitions because the forum that is the High Court where the writ petitions were instituted could not have issued a writ to the private respondent which had changed hands in the intervening period. Hence, the question is also decided against the appellants.
The view taken by the Division Bench of the Bombay High Court in denying equitable relief to the appellants herein and relegating them to approach the appropriate forum for ventilating their grievances is the only just and permissible view - there are no reason to take a different view from the one taken by the Division Bench of the Bombay High Court in sustaining the preliminary objection qua maintainability of the writ petitions preferred by the appellants and rejecting the same as being not maintainable.
Appeal dismissed.
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2024 (5) TMI 1142
Dishonour of Cheque - compromise agreement between the accused and the complainant - HELD THAT:- The terms and conditions of compromise mentioned in the affidavit are read over to the parties and they are admitted as true and correct. In a decision reported in - DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], the Hon‟ble Apex Court held in case of compounding during the pendency of proceedings before a Magistrate's Court or a Court of Session, such costs should be deposited with the District Legal Services Authority.
On being satisfied with the terms and conditions of compromise and in view of the amicable settlement made by both parties, application is allowed and consequently the Criminal Revision Case is disposed of by setting aside the judgment.
The petitioner/accused is acquitted for the offence punishable under Section 138 of N.I. Act - Application disposed off.
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2024 (5) TMI 1103
Dishonour of Cheque - insufficient funds - legally enforceable debt or not - aquittal of accused - complaint did not produce any document to show that he has money lending authority - failure to rebut the presumption under Section 139 of the Negotiable Instruments Act - HELD THAT:- In the present case, the Complainant has sent a demand Notice on the Cheque being dishonoured. And the presumption as per Section 139 N.I. Act is in favour of the Complainant. The accused did not rebut the presumption in any manner whatsoever.
The findings of the Learned Magistrate is clearly against the provisions of Section 139 of the N.I. Act and thus not in accordance with law.
In Oriental Bank of Commerce vs Prabodh Kumar Tewari, [2022 (9) TMI 264 - SUPREME COURT], the Supreme Court held that 'Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.'
The Respondent No. 2/accused, Raja Dutta is hereby convicted of the offence punishable under Section 138 of the Negotiable Instruments Act and is hereby directed to pay a fine of Rs. 8 lakhs within a period of two months from the date of this order in default to suffer imprisonment for six months and in default, the trial Court shall proceed in accordance with law.
Application disposed off.
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2024 (5) TMI 1101
Jurisdiction - power of Collector (Stamp) to recall or review an order by him under Section 47 of the Indian Stamp Act, 1899 - orgery of certain documents - whether the Collector (Stamp) who acts as a quasi-judicial authority possesses any power, inherent or statutory, to recall/review an order passed under Section 47-A of the Act? - HELD THAT:- Upon a perusal of the Act, it is apparent that no such power seems to be made available to the Collector. The Division Bench of this Court in Milap Chandra Jain’s case 1988 (7) TMI 420 - ALLAHABAD HIGH COURT] examined this particular issue and held that 'The submission cannot be accepted as sub-section (4) comes into play only if the matter had not already been referred to the Collector under sub-section (1) or sub-section (2) of Section 47-A. In the present case, the dispute had already been specifically referred to and answered by the Collector under Section 47-A of the Stamp Act.'
The Collector (Stamp) cannot recall and/or review his own order as no such power has been conferred under Section 47-A of the Act. A quasi-judicial authority is limited in its functionality in as much as it has to act within the four corners of the statute from which it derives its authority. If the statute does not provide for a particular act, the same cannot be undertaken by that authority. Any such action taken de hors the legislative intent would amount to an overreach and beyond the power of the said authority.
The rationale behind limiting the review powers of quasi-judicial authorities lies in ensuring adherence to the principle of separation of powers and preserving the integrity of the legislative scheme. Quasi-judicial authorities, being creatures of statute, must operate within the boundaries set forth by the legislature and therefore they cannot exceed their statutory mandate - The legislature, in its wisdom, may choose to grant limited review powers to certain quasi-judicial authorities based on the nature of the disputes they adjudicate and the need for effective administration of justice.
In the instant case, it is clear that no such power was present with the Collector (Stamp), and therefore, the exercise of review carried out by the Collector (Stamp) is bad in law.
In light of the same, the impugned order dated February 3, 2023 is quashed and set-aside - the writ petition is allowed.
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2024 (5) TMI 983
Dishonour of Cheque - dispute has been settled amicably - respondent has submitted that he has no objection if petitioner is acquitted from the charge under Section 138 of Negotiable Instruments Act, 1881 - HELD THAT:- Since the parties are entering into compromise at the stage of revision, therefore, law laid down by the apex Court in the case of DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] will be applicable in this case, where it was held that 'if the application for compounding is made Criminal Revision No.3198/2021 before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.'
Considering the fact that the parties have amicably settled their dispute and have entered into compromise before this Court in the revision and decided to avoid further litigation, hence, the applicant is liable to pay 3% of the cheque amount i.e. Rs. 900/- by way of cost to be deposited with the “State Legal Services Authority” Indore - Subject to payment of cost at the rate of 3% of the cheque amount with the “State Legal Services Authority” Indore, within seven days from the date of this order, the applicant be acquitted and released from the jail thereon, if he is in jail.
The revision stands disposed of.
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2024 (5) TMI 982
Rejection of prayer for grant of renewal of license - requirement of minimum distance between L-10BB and L-2 vend - Section 68 (2) of the Himachal Pradesh Excise Act, 2011.
Financial Commissioner (Excise), Himachal Pradesh, Shimla while passing order dated 16.04.2024 specifically concluded that license in form L-10BB granted to application was approved and granted only in respect of branch at 269 Ward No.4, The Mall Road, Manali and not for the principal place of business and as such, same cannot be renewed.
HELD THAT:- This Court finds that it is not in dispute that in the financial year 2020-21, petitioner-firm was granted license form L-10BB for retail sale of beer, wine, cider and RTD beverages and BIO brands in departmental stores at Manali. Aforesaid license issued initially in year 2021 was renewed continuously till financial year 2023-24. It is also not in dispute that prior to issuance of clarification dated 20.12.2023 (Annexure P-4), license holder in form L-10BB were entitled to run their business from branch office. It is only after issuance of aforesaid clarification dated 20.12.2023, condition of doing business from principal place of business came to be imposed as per condition No. 10.8 of Excise Policy for year 2023-24.
Careful perusal of clarification issued by respondent-department vide communication dated 20.12.2020 reveals that after issuance of aforesaid communication, business in terms of license in form L-10BB could only be done in terms of condition No. 10.8(vi) of Excise Policy 2023-24, meaning thereby, after issuance of aforesaid clarification, L-10BB license holder are not permitted to function from the branches of departmental store, but there is nothing in the aforesaid announcements, especially detailed in condition No. 10.8 that prayer, if any made, for renewal of license in form L-10BB made on behalf of such of the licensees, who though earlier in terms of aforesaid license were doing their business from branch but had eventually decided to shift their branch to principal place of business, cannot be accepted.
Reliance is also placed upon judgment by Principal Division Bench in MOHAN MEAKIN LTD. AND ORS. VERSUS STATE OF H.P. AND ORS. [2019 (9) TMI 1728 - HIMACHAL PRADESH HIGH COURT], wherein it specifically came to be ruled that till the time, amendment is not made in the Rules, the conditions contained in Excise Policy cannot be enforced, especially when same is in contradiction with the provision contained in the Rules - It is quite apparent from the law laid down by the Division Bench of this Court that conditions contained in Excise Announcements made for a particular financial year cannot be enforced, in case, same are contrary to the Rules, whereunder licensee is granted license to do the business of liquor, be it in form of L-10BB or L-2 vend.
This Court finds merit in the present petition and as such, same is allowed and impugned order dated 16.04.2024 passed by Financial Commissioner (Excise), Himachal Pradesh (Annexure P-10) is quashed and set aside with the direction to respondents to accept the prayer made by the petitioner for grant of renewal of license L-10BB on account of the fact that premises, wherein business was being run in previous years in terms of form L-10BB stands upgraded to principal place of business, as is evident from the amended GST Registration Certificate issued by the authority concerned.
Petition allowed.
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2024 (5) TMI 981
Betting - amount from the punters towards payment of GST and from the winning bettors towards payment of TDS and have not deposited the same to the concerned Department - misappropriation of the money - whether the nature of accusations and allegations made in the first information report prima facie discloses the commission of a cognizable offence or not? - HELD THAT:- In almost identical circumstances, the Hon'ble Supreme Court in the case of State of West Bengal vs. Narayan K. Patodia [2000 (4) TMI 777 - SUPREME COURT], wherein the High Court of Calcutta had quashed the first information report on the ground that the person who forwarded the same to the police had no authority to do so, has set-aside the order passed by the High Court of Calcutta. In the said case, FIR was registered under the Indian Penal Code and the provisions of West Bengal Sales Tax Act and FIR contained allegations that on the basis of fabricated documents, the accused had obtained the registration under the Sales Tax Act, which entitled him to make purchase at concessional rate of sales tax and also receive permits for importing spices from outside the state. The High Court had quashed the first information report by expressing its opinion that under the Sales Tax Act, only Bureau of Investigation constituted by the State Government can conduct the investigation or hold inquiry and police officer cannot register first information report for the offence punishable under the Indian Penal Code or any other Act.
In the case of ANJAN DASGUPTA VERSUS THE STATE OF WEST BENGAL AND ORS. [2016 (11) TMI 1755 - SUPREME COURT], the Hon'ble Supreme Court has observed that the receipt and recording of first information report is not a condition precedent for setting in motion of a criminal investigation and when information is received with regard to cognizable offence, the police was duty bound to start the investigation.
In the present case only for the purpose of verification of the correctness of the credible information received, the first informant, who is a police officer had visited the premises of the Bangalore Turf Club and after holding a preliminary enquiry, being satisfied with regard to the correctness of the first information received by him, had proceeded to lodge a first information before the jurisdictional Police Station, which had culminated in registration of FIR in Crime No. 9/2024 and investigation in the case was conducted only thereafter and therefore, the contention raised by the learned Senior counsel for the petitioners that procedure followed by the police in the present case is contrary to the principles laid down by the Hon'ble Supreme Court in the case of Lalita Kumari [2013 (11) TMI 1520 - SUPREME COURT] is devoid of any merit.
The only point that arises for consideration before the High Court at that stage is whether the nature of accusations and allegations made in the first information report prima facie discloses the commission of a cognizable offence or not. In the event, it is found that allegations made in the first information makes out a prima facie case for cognizable offence, the investigating agency is required to be permitted to carry on with the investigation. Section 482 of Cr.P.C cannot be a tool to be used by accused to short-circuit a prosecution and close the same without full fledged enquiry, more so, when serious allegations are found against the accused.
Section 482 of Cr. P.C. should not be exercised to stifle a legitimate prosecution. When a prosecution is sought to quashed at the initial stage, the test to be applied by the Court is as to whether the uncontroverted allegations made, prima facie makes out the offence/offences. The correctness of the allegations as well as the reliability and credibility of the witnesses cannot be considered by this Court while exercising its powers under Section 482 of Cr. P.C. - In the present case, as stated earlier, the allegations found in the first information and the material collected by the Investigation Officer during the course of investigation prima facie make out a cognizable offence as against the accused and in view of the interim order granted by this Court, the investigation which was under progress has been stalled. The allegations against the accused is of very serious nature and the accused amongst other allegations, allegedly have misappropriated crores of money collected by them towards payment of GST and TDS.
The prayer made by the petitioners for quashing the FIR registered against them cannot be granted - Petition dismissed.
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2024 (5) TMI 926
Issues involved: Withdrawal of appeal and request for observation on impugned judgment not to be cited as precedent.
Withdrawal of Appeal: Mr. Pramod Dayal, learned counsel for the appellant, informed the court that the appellant, Council of the Institute of Chartered Accountants of India, does not wish to proceed with the appeal any further and requested for withdrawal. The civil appeal was subsequently dismissed as withdrawn, as prayed by the appellant.
Request for Observation on Impugned Judgment: While seeking withdrawal of the appeal, Mr. Pramod Dayal requested the court to make an observation that the impugned judgment should not be cited as a precedent in any future case. The court clarified that since the appeal was withdrawn, no comments were made on the merits of the impugned judgment.
This judgment highlights the voluntary withdrawal of the appeal by the appellant, the Council of the Institute of Chartered Accountants of India, and the request made by their counsel for a specific observation regarding the impugned judgment not being used as a precedent in future cases. The court acknowledged the withdrawal of the appeal and granted the request for the observation, emphasizing that no comments were made on the merits of the impugned judgment due to the withdrawal of the appeal.
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2024 (5) TMI 925
Dishonour of Cheque - cheating - in-spite of repeated requests the petitioner did not execute the registered deed of sale in favour of the complainant - offence under Section 138 of the N.I. Act and also under Section 420 IPC - HELD THAT:- From the perusal of the materials and questions put to the petitioner under section 313 of Cr. P.C, this court finds that no question was put to the petitioner with regard to any element of cheating or regarding his intention to cheat the complainant much less intention to cheat right from the inception of transactions between the parties of sale purchase of land. Rather there was no question that at the time of dealing with the landed properly and taking advance money of Rs. 4,85,000/- for purchase of land, the petitioner had any intention to cheat - this court finds that no question whatsoever was put to the petitioner under section 313 with regard to basic ingredient of offence under section 420 IPC i.e. intention to cheat much less any intention to cheat at the very inception of the transaction regarding sale purchase of land or even at the stage of issuance of cheque.
In the present case, this court finds that there is no allegation of dishonest intention of the petitioner right at the inception of money transaction regarding sale and purchase of land and thus the basic allegation /ingredients of dishonest intention to cheat right at the time of the money transaction between the parties in connection with sale and purchase of land is totally absent. In such circumstances, the act of refusal to execute the registered deed was mere violation of oral agreement of sale purchase of land. Under such circumstances, this court is of the considered view that the act of issuance of cheque of a closed account by itself does not satisfy the basic ingredient of section 420 I.P.C. that is, dishonest intention of the petitioner right at the inception of money transaction - This court is of the considered view that conviction of the petitioner for offence under section 420 IPC cannot be sustained even on the alleged ground of issuance of cheque to refund the amount from a closed account.
This court is of the considered view that the learned courts have not considered the aforesaid aspects of the matter while convicting the petitioner for offence under section 420 of I.P.C. and have recorded perverse findings to convict the petitioner under section 420 IPC which has caused serious miscarriage of justice and calls for interference under revisional jurisdiction.
The records reveal that the cheque was dated 09.07.2014, presented on 17.07.2014 dishonored on 18.09.2014, legal notice was sent on 27.09.2014 and the complaint case was filed on 17.10.2014. There is no evidence regarding service of legal notice. Even if deemed service of legal notice is considered then also the notice can be said to have been served only upon expiry of 30 days and thereafter 15 days is also available to pay the cheque amount and then only the cause of action to file the complaint case could arise. Accordingly, the complaint, so far as it relates to offence under section 138 of N.I. Act is concerned, is premature.
Since the complaint to the extent it relates to offence under section 138 of N.I. Act has been held to be pre-mature, the complainant may still file a fresh complaint and satisfy the court regarding sufficient cause for delay. The complainant may file the fresh case under section 138 of N.I. Act within a period of 2 months from today - the conviction and sentence under section 420 IPC is set aside the conviction and sentence under section 138 of N.I. Act is also set-aside with the aforesaid liberty to file a fresh complaint under section 138 of N.I. Act.
The present petition is disposed off.
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2024 (5) TMI 924
Seeking grant of bail - smuggling of Tramadol - requirement for authorization as envisaged by Rule 58 of the NDPS Act, 1985 for the export - whether First Wealth could have exported the drug in question i.e. Tramadol?
The court considered the roles of Gudipati (A1), Ahmed Saleh Hasan alias Aldosky (A4), and Ravindra Kavthankar (A5) in the alleged conspiracy to export Tramadol disguised as calcium carbonate.
Whether the export of Tramadol required authorization u/r 58 of the NDPS Rules, 1985? - HELD THAT:- It is a well recognized principle of statutory interpretation that the Parliament uses the words for a definite purpose - On a plain construction of Section 8(c) of the NDPS Act, 1985 export of a psychotropic substance sans licence, permit or authorization under the governing rules or orders is expressly prohibited.
The proviso to Rule 53 cannot be so construed as to dilute the rigor of the prohibition contained in main part of Rule 53 to the extent that no authorization as such is required if a narcotic drug or psychotropic substance is exported for medical purposes. Such a construction would run counter to the object of prohibiting import into and export out of the India of narcotic drugs and psychotropic substances sans regulation - Sub-rule (1) of Rule 58 also emphasis the mandatory character of the said Rule. The necessity of export authorization is underscored not only by using the word, ‘shall’ but also by employing the legislative command in a negative form by using the word. ‘No’ at the beginning of sub-rule (1).
Thus, the export of Tramadol required authorization u/r 58 of the NDPS Rules, 1985.
Role and complicity of Gudipati (A1) in the alleged conspiracy - HELD THAT:- The submissions on behalf of Gudipati (A1) and Ahmed Saleh (A4) that there was no requirement of export authorization as envisaged by Section 8(c) read with Rule 58 of the NDPS Rule, 1985, cannot be acceded. This inference, effectively seals the fate of the application for bail of Gudipati (A1). Since there is overwhelming material to point the complicity of Gudipati (A1), the interdict contained in Section 37 of the NDPS Act, 1985 operates with full force and vigor.
Role and complicity of Ahmed Saleh Hasan alias Aldosky (A4) in the alleged conspiracy - HELD THAT:- Prima facie there is sufficient material to demonstrate that Ahmed Saleh (A4) was a confederate in conspiracy to export the psychotropic substance. There is no substantial probable cause to believe that Ahmed Saleh (A4) may not be guilty of the offences for which he has been arraigned. Rigor of Section 37 of the NDPS Act, 1985 stands attracted.
Role and complicity of Ravindra Kavthankar (A5) in the alleged conspiracy - HELD THAT:- Wether Ravindra (A5) was privy to the alleged offences prima faice appears debatable. Having regard to the limited role of a courier manager of a Freight Forwarder Company, and the material which is pressed into service against Ravindra (A5), the rigor contained in Section 37 of the NDPS Act, 1985 may not be attracted qua Ravindra (A5). The Court is not informed that the applicant Ravindra (A5) has antecedents - the application of Ravindra (A5) is allowed.
Applications disposed off.
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2024 (5) TMI 923
Maintainability of the writ petition against contractual dispute in the private law realm - money decree, adjudicated disputes, questions of fact - default to pay the rents revised as per their CPWD Norms - Single Bench directed the sum to be paid to the writ petitioners being the arrears of rent alleged to be payable to the writ petitioners - respondents/ writ petitioners contended that appellant department willfully defaulted to pay the rents revised from time to time as per their CPWD Norms and as per the orders and instructions given by the Income Tax Department and the learned Single Bench rightly took note of the factual position had allowed the writ petition - HELD THAT:- The Court can exercise jurisdiction even in a private law realm subject to the “caveats” - See Puna Hinda [2021 (9) TMI 1548 - SUPREME COURT], Bharat Coking Coal Limited and Ors. [2020 (3) TMI 1465 - SUPREME COURT]
Adjudication of arrears of rent and related payments - Chief Commissioner of Income Tax fixed the rent at Rs. 34,302/- per month. This fixation was unilaterally not communicated to the writ petitioner which has been admitted by the department in affidavit-in-opposition. To be noted, that in spite of the direction issued in the earlier writ petition in the appellant department did not take any constructive steps to comply with the direction and to reasonably deal with the writ petitioners who are admittedly owner of the premises. Therefore, the learned Single Bench was right in observation that the department was delaying the matter for a prolonged period and failed to incorporate the revised CPWD rates as the quantum of rent for the building in question.
As pointed out earlier and as well as rightly noted by the learned Single Bench all along the appellant department have acted on the basis of CPWD rates for assessing the rent for the premises in question. The circular issued in 1987 is also to the same effect and therefore the appellant department cannot deviate from such norms.
There is no disputed question of fact and all that the hiring department was harping upon with regard to the CPWD rates. As noted by us above all along the department has been adopting the CPWD rates and they cannot make a departure at this juncture.
There were five columns in the tabulated statement of which column A was the amount according to the recognized principle of valuation. Column B was according to the prevailing market rate of rent. Column C was the amount already received. The next column was A minus C i.e. the balance to be received according to principles of valuation and the last column being B minus C i.e. the balance to be received according to the market price of rent. The learned Single Bench rightly took note of the rent which was calculated according to the recognized principles of valuation and deducted the amount already received by the writ petitioners and the balance receivable was Rs. 2,82,39,242/- which has been directed to be paid by the department to the writ petitioners.
Thus, we find that not only the writ petitioners/owners of the building were unfairly dealt for all these years, driven from the pillar to post and the department being the State ought to have dealt with its citizen/landlord in a better manner, that apart there is no dispute which requires any adjudication in the matter and therefore the writ petition was maintainable and rightly entertained by the learned Single Bench and the directions issued therein are sustainable in law.
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2024 (5) TMI 922
Seeking disclosure of broad outcome of the tax evasion petition filed by the petitioner - Right to Information Act - HELD THAT:- The petitioner wanted to get information pertaining to tax evasion petition against Harmohan Sarangi and Himansu Sarangi (sent to office vide speed post ref:R08002098781N dated 06.08.2017). But such information, in any way, do not indicate that the petitioner has made a query and sought for information with regard to disclosure of broad outcome of tax evasion petition under Annexure-2. Rather, the information sought for by the petitioner clearly reveals that the petitioner has tried to make a roving enquiry and for supply of those materials, which are not to be disclosed in view of the provisions contained under clause (i) of Section 8 (1) of the Right to Information Act. Therefore, the Public Information Officer rejected his claim, which has been confirmed by the first appellate authority as well as the second appellate authority.
This Court is of the considered view that no illegality or irregularity has been committed by the authority in passing the orders impugned under Annexures-4, 5 and 6. Accordingly, the writ petition merits no consideration and the same is hereby dismissed.
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2024 (5) TMI 883
Commission of offences Under Sections 153A, 505(1b), 117 read with Section 34 of the Indian Penal Code, 1860 - violence broke out at a function organised by Elgar Parishad - in the said programme, provocative speeches were delivered and there were cultural performances which had the effect of creating enmity between caste groups, resulting in disruption of communal harmony, violence, and loss of life - HELD THAT:- In the case of K.A. Najeeb v. Union of India [2021 (2) TMI 1212 - SUPREME COURT], a three Judge Bench of this Court (of which one of us Aniruddha Bose, J. was a party), has held that a Constitutional Court is not strictly bound by the prohibitory provisions of grant of bail in the 1967 Act and can exercise its constitutional jurisdiction to release an Accused on bail who has been incarcerated for a long period of time, relying on Article 21 of Constitution of India.
This Court has already accepted right of an Accused under the said offences of the 1967 Act to be enlarged on bail founding such right on Article 21 of the Constitution of India. This was in the case of Najeeb, and in that judgment, long period of incarceration was held to be a valid ground to enlarge an Accused on bail in spite of the bail- restricting provision of Section 43D(5) of the 1967 Act. Pre- conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an Accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same Accused. Depending on gravity and seriousness of the offence alleged to have been committed by an Accused, detention before conclusion of trial at the investigation and post-chargesheet stage has the sanction of law broadly on these reasonings. But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law Courts would have to apply while testing prosecution's plea of pre-trial detention, both at investigation and post-chargesheet stage.
Once it is found that Section 43D(5) of the 1967 Act would not be applicable in the case of the Appellant, the case is required to examine the case of the Appellant in relation to accusation against her Under Section 13 of the 1967 Act and also other offences under the provisions of the 1860 Code, which we have narrated earlier. It is already indicated that she is a lady of advanced age, suffering from various ailments.
The Appellant be is directed to be released on bail on such conditions the Special Court may consider fit and proper but the conditions shall include the following: (a) The Appellant shall not leave the State of Maharashtra without leave of the Special Court. (b) The Appellant shall surrender her passport, if she possesses one, with the Special Court, during the period she remains enlarged on bail. (c) The Appellant shall inform the Investigating Officer of the NIA the address where she shall reside during the period she remains enlarged on bail. (d) The Appellant shall use only one mobile number, during the time she remains on bail, and shall inform her mobile number to the Investigating Officer of the NIA. (e) The Appellant shall also ensure that her mobile phone remains active and charged round the clock so that she remains constantly accessible throughout the period she remains enlarged on bail. (f) During this period, i.e. the period during which she remains on bail, the Appellant shall keep the location status (GPS) of her mobile phone active, twenty-four hours a day, and her phone shall be paired with that of the Investigating Officer of the NIA to enable him, at any given time, to identify the Appellants' exact location. (g) The Appellant, while on bail, shall report to the Station House Officer of the Police Station within whose jurisdiction she shall reside, once every fortnight.
Appeal allowed.
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2024 (5) TMI 882
Maintainability of petition - honour of contractual obligations of making payment - Jurisdiction of the writ court in contractual matters - violation of a contractual right - time limitation for filing a suit - HELD THAT:- The issue whether a matter which lies entirely within a private realm can be dealt with under a writ jurisdiction against an entity amenable to such jurisdiction cropped up in M.P. POWER MANAGEMENT COMPANY LIMITED, JABALPUR VERSUS SKY POWER SOUTHEAST SOLAR INDIA PRIVATE LIMITED AND ORS. [2022 (11) TMI 1395 - SUPREME COURT]. The proposition of law laid down by the Hon’ble Supreme Court in the aforesaid reports is that even in case of non-statutory contract, the jurisdiction of the writ court can be invoked if the aggrieved party is able to establish that the action of the entity amenable to writ jurisdiction is per se arbitrary. The said decision also recognizes the right of an aggrieved party to call upon such an entity to honour its obligation of making payment unless a serious and genuine dispute is raised relating to the liability to make such payment.
Before arriving at a final conclusion as to whether the judgment and order impugned calls for interference, this Court has to turn back to the case on hand to see whether there is a serious and genuine dispute relating to the liability to make payment - The stand of the Institute in the report filed in the form of an affidavit before the writ court that the Institute was established and placed under the mentorship of NIT, Durgapur, in the absence of its regular Director and the mentorship continued till 06.08.2017 and also that the Institute got its first director on and from 07.08.2017 does not appear to have been disputed by the writ petitioners.
This Court is of the considered view that in case of alleged violation of a contractual right or duty by the State or its instrumentalities or entities amenable to jurisdiction under Article 226, normally the aggrieved person has to avail the established civil adjudicatory process and only in exceptional circumstances in contractual matters or even when money claim is raised, the writ court may in exercise of its discretion entertain the writ petition.
Violation of a contractual right - HELD THAT:- The writ petitioners have claimed payment on account of work done by them. The dispute, therefore, is within the private realm. In order to maintain a writ petition involving such a dispute, the writ petitioners have to satisfy the Court that the case falls within the exceptional circumstances. The conduct of the writ petitioners may be of some relevance for deciding whether the case of the writ petitioners fall within the exceptional circumstances.
Time limitation for filing a suit - HELD THAT:- This Court holds that the period prescribed under the Limitation Act for filing a suit shall be considered to be the reasonable time period for filing a writ petition involving money claim. Any contrary interpretation would encourage an aggrieved person, not vigilant of his rights, to get a claim arising out of contractual matters adjudicated through judicial process which has already become time barred - In the case on hand there has been an inordinate delay in filing the writ petition which remains unexplained. The writ petitioners have failed to satisfy this Court that a civil suit for such reliefs would not have become barred by limitation at the point of time when the writ petition was filed. Such an issue goes to the jurisdiction of the Court which somehow escaped the attention of the learned Single Judge. Therefore, it appears to this Court that there is a serious dispute as to the liability to make payment.
The writ petitioners have miserably failed to bring their case within the exceptional circumstances for the Writ Court to entertain a money claim for alleged violation of a contractual right by an entity amenable to the jurisdiction under Article 226 of the Constitution of India - this Court is of the considered view that the writ petitioners could not have been allowed to bypass the established civil adjudicatory process merely because the claim is against an entity amenable to writ jurisdiction. This Court, therefore, holds that the writ petitions were not maintainable.
The impugned judgment and order stands set aside - Appal allowed.
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2024 (5) TMI 881
As per BELA M. TRIVEDI, J.
Service or not - service or hiring or availing of an Advocate - whether a complaint alleging “deficiency in service” against Advocates practising Legal Profession, would be maintainable under the Consumer Protection Act, 1986 as re-enacted in 2019?
Whether the Legislature ever intended to include the Professions or services rendered by the Professionals within the purview of the CP Act 1986 as re-enacted in 2019? - HELD THAT:- Considering the intention of the Legislature, the objects and reasons of the Act of 1986 it was repeatedly held that the said Act was enacted to provide for the better protection of the interests of the consumers against their exploitation by the traders and manufacturers of the consumer goods, and to help consumers in getting justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies.
It is trite to say that a reference to statement of objects and reasons is permissible for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute had sought to remedy - As discernible from the statement of objects and reasons for re-enacting the CP Act, 2019, there were certain shortcomings found in the CP Act 1986 while administering the said Act, and at the same time, due to the emergence of global supply chains, rise in international trade and rapid development of ecommerce leading to new systems for goods and services, new options and opportunities had become available to the consumers.
The very purpose and object of the CP Act 1986 as re-enacted in 2019 was to provide protection to the consumers from the unfair trade practices and unethical business practices only. There is nothing on record to suggest that the Legislature ever intended to include the Professions or the Professionals within the purview of the Act.
It is thus well recognized in catena of decisions that the legal profession cannot be equated with any other traditional professions. It is not commercial in nature but is essentially a service oriented, noble profession. It cannot be gainsaid that the role of Advocates is indispensable in the Justice Delivery System. An evolution of jurisprudence to keep our Constitution vibrant is possible only with the positive contribution of the Advocates - That is the reason they are expected to act according to the principles of uberrima fides i.e., the utmost good faith, integrity, fairness and loyalty while handling the legal proceedings of his client. Being a responsible officer of the court and an important adjunct of the administration of justice, an Advocate owes his duty not only to his client but also to the court as well as to the opposite side.
Whether the Legal Profession is sui generis? - HELD THAT:- The legal profession is different from the other professions also for the reason that what the Advocates do, affects not only an individual but the entire administration of justice, which is the foundation of the civilized society. It must be remembered that the legal profession is a solemn and serious profession. It has always been held in very high esteem because of the stellar role played by the stalwarts in the profession to strengthen the judicial system in the country - having regard to the role, status and duties of the Advocates as the professionals, the legal profession is sui generis i.e unique in nature and cannot be compared with any other profession.
Whether a Service hired or availed of an Advocate could be said to be the service under “a contract of personal service” so as to exclude it from the definition of “Service” contained in Section 2 (42) of the CP Act 2019? - HELD THAT:- Advocate is included in the definition of “Legal Practitioner” but legal practitioner is not included in the definition of “Advocate.” Advocate is one who has been entered in any roll under the provisions of the Advocates Act - The disciplinary powers for taking action against the Advocates and impose punishment for their misconduct have been conferred upon the State Bar Councils and Bar Council of India as the case may be under the Chapter V of the Advocates Act. The Bar Council of India Rules framed under the Advocates Act lay down the restrictions on the Senior Advocates, and also lay down the standards of professional conduct and etiquette, which include the duties of the advocate to the Court, to the client, to the opponent and to the colleagues. Thus, comprehensive provisions are contained in the Advocates Act, 1961 and the Bar Council of India Rules framed thereunder, to take care of the professional misconduct of the Advocates, and prescribing the punishments if they are found guilty of professional or other misconduct by the Disciplinary Committees of the State Bar Council or the Bar Council of India as the case may be.
This Court in Dharangadhra Chemical Works Ltd. vs. State of Saurashtra and Others [1956 (11) TMI 33 - SUPREME COURT], recognized this position of law and held that “the correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer”.
As per PANKAJ MITHAL, J.
Whether the legal services of the lawyer availed of by the client would be covered under the Consumer Protection Act, 1986 (now Consumer Protection Act, 2019)? - HELD THAT:- It is well recognized that the profession of law is a noble profession having an element of duty towards the court. Lawyers perform multi-faceted duties. They not only have a duty towards the client or their opponents but they have a paramount duty to assist the court as well. In a way, they are officers as well as ambassadors of the court. Thus, in rendering such kind of a duty to enable the courts to come to a just conclusion, it may be possible that at times, the lawyers may earn displeasure of the client while assisting the court - The profession of law, as such, is regarded as sui generis i.e. which is unique. It is distinct from all other professions and is one of its own kind.
The Consumer Protection Act, 1999 enacted by the Parliament of Malaysia vide Section 2 (2)(e) specifically provides that the said act shall not apply, inter alia, to services provided by professionals who are regulated by any law. It may be worth noting that the services of the professionals such as lawyers in Malaysia are governed by Legal Profession Act, 1976. Therefore, by virtue of the above Section 2 (2) (e), the services provided by the professionals such as lawyers stand excluded from the application of the Consumer Protection Act of Malaysia - It would be trite to mention here that the legal profession is a regulated profession in India. The Advocates Act, 1961 regulates the conduct of lawyers in India and is a complete code in itself. Given the regulation, India also needs to bring the working of its regulated professions in alignment with international practices.
The view taken by the NCDRC to the effect that in respect of deficiency in service rendered by the lawyers, a complaint in Consumer Protection Act, 1986 would be maintainable, is incorrect and stands overruled.
The impugned order of the National Consumer Disputes Redressal Commission dated 06.08.2007 is hereby set aside - Appeal disposed off.
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2024 (5) TMI 844
Legality and validity of the order of termination of the arbitral proceedings under clause (c) of subsection (2) of Section 32 of the Arbitration and Conciliation Act, 1996 - abandonment of claim filed before the learned Arbitrator - HELD THAT:- It is held and concluded as follows:
a. The power under clause (c) of subsection (2) of Section 32 of the Arbitration Act can be exercised only if, for some reason, the continuation of proceedings has become unnecessary or impossible. Unless the Arbitral Tribunal records its satisfaction based on the material on record that proceedings have become unnecessary or impossible, the power under clause (c) of subsection (2) of Section 32 cannot be exercised. If the said power is exercised casually, it will defeat the very object of enacting the Arbitration Act;
b. It is the Arbitral Tribunal's duty to fix a meeting for hearing even if parties to the proceedings do not make such a request. It is the duty of the Arbitral Tribunal to adjudicate upon the dispute referred to it. If, on a date fixed for a meeting/hearing, the parties remain absent without any reasonable cause, the Arbitral Tribunal can always take recourse to the relevant provisions of the Arbitration Act, such as Section 25;
c. The failure of the claimant to request the Arbitral Tribunal to fix a date for hearing, per se, is no ground to conclude that the proceedings have become unnecessary; and
d. The abandonment of the claim by a claimant can be a ground to invoke clause (c) of subsection (2) of Section 32. The abandonment of the claim can be either express or implied. The abandonment cannot be readily inferred. There is an implied abandonment when admitted or proved facts are so clinching that the only inference which can be drawn is of the abandonment. Only if the established conduct of a claimant is such that it leads only to one conclusion that the claimant has given up his/her claim can an inference of abandonment be drawn. Even if it is to be implied, there must be convincing circumstances on record which lead to an inevitable inference about the abandonment. Only because a claimant, after filing his statement of claim, does not move the Arbitral Tribunal to fix a date for the hearing, the failure of the claimant, per se, will not amount to the abandonment of the claim.
Appeal dismissed.
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2024 (5) TMI 831
Invocation of constitutional jurisdiction under Article 32 - seeking directions relating to the conservation of the species - Right to a healthy environment and freedom from adverse effects of climate change - Balance between conservation efforts and renewable energy development - HELD THAT:- The right to a healthy environment encapsulates the principle that every individual has the entitlement to live in an environment that is clean, safe, and conducive to their well-being. By recognizing the right to a healthy environment and the right to be free from the adverse effects of climate change, states are compelled to prioritize environmental protection and sustainable development, thereby addressing the root causes of climate change and safeguarding the wellbeing of present and future generations. It is imperative for states like India, to uphold their obligations under international law, including their responsibilities to mitigate greenhouse gas emissions, adapt to climate impacts, and protect the fundamental rights of all individuals to live in a healthy and sustainable environment.
India's commitment to promoting renewable energy sources, particularly in regions like Gujarat and Rajasthan, aligns with its broader sustainable development objectives. By transitioning towards solar power and other renewable energy sources, India aims to not only reduce carbon emissions but also improve energy access, foster economic growth, and create employment opportunities - India’s commitment to sustainable development is also underpinned by its international obligations and commitments. As a signatory to various international conventions and agreements, including the UNFCCC and the Convention on Biological Diversity, India has pledged to uphold principles of environmental stewardship, biodiversity conservation, and climate action on the global stage. Through partnerships, knowledge sharing, and collaborative action, India seeks to amplify the impact of its sustainable development efforts, contributing to collective efforts aimed at addressing global challenges.
The Union of India and the concerned ministries are directed to implement the measures described in the preceding paragraph, which it has undertaken to implement. Further, they are directed to continue implementing the measures detailed in paragraph 8(d) of this judgment. The directions contained in the order dated 19 April 2021 shall accordingly stand substituted by those contained in the present judgment. The project clearances which have been granted pursuant to the recommendations of the earlier committee appointed in terms of the order dated 19 April 2021 shall not be affected by the present judgment.
List in the second week of August 2024 for consideration of the report of the expert committee appointed in terms of the present judgment.
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