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Indian Laws - Case Laws
Showing 461 to 480 of 26755 Records
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2024 (3) TMI 174
Dishonour of Cheque - complainant could not show, by producing any evidence that in fact the notice was served on him - Onus to prove on complainant - non-fulfilment of essential condition for taking cognizance, as provided under Section 138 clause (c) read with section 142(1)(b) of the NI Act - whether non-filing of track report or acknowledgement due card would illegal to proceed with the case filed under Section 138 of the Negotiable Instruments Act, 1881 or not? - HELD THAT:- It appears from the complaint itself the requirements as provided under Section 138 of the Negotiable Instruments Act, 1881 have been fulfilled by the complainant.
So far as the issue raised by the petitioner that no postal track report has been filed by the petitioner to show actual service of notice under Section 138 of Negotiable Instruments Act, 1881. The complainant has issued a demand notice to the correct address of the accused person. No envelope returned back to the claimant. So it seems notice is properly served. In several decisions, the Hon’ble Supreme Court of India held that when the notice is served upon the actual or proper address of the addressee, it shall be deemed to be properly served unless contrary is proved.
The trial Court seems to have drawn a presumption of law with regards to service of demand notice. Furthermore, onus lies upon the claimant to prove his case at the time of trial. At the same time, accused person also gets opportunity to contest the same during trial.
This Court does not find any illegality or infirmity in taking cognizance by the learned Magistrate and issue summon upon the accused person. Accordingly, CRR 1710 of 2021 is devoid on merit and required to be dismissed.
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2024 (3) TMI 173
Dishonour of Cheque - legally enforceable debt or liability - statutory presumption in terms of Sections 118 and 139 of the NI Act - time barred debt - HELD THAT:- It is evident that issuance of a cheque on a time barred debt is enforceable in terms of Section 25(3) of the Indian Contract Act and such debt is legally enforceable debt within the meaning of Section 138 of the NI Act. In the present case, according to the evidence of PW.1 he has paid Rs.3 Lakhs on 22.07.2009 by way of cheque and Rs.1,50,000/- by way of cash as on the date of issuance of cheque on 02.04.2013, it was barred by time.
The fact alleged by complainant in the complaint that he has paid Rs.4,50,000/- as hand loan to the accused in the month of June 2012. The said statement is further reiterated in the demand notice - Ex.P3. However, the evidence of PW.1 in examination-in- chief itself as referred above in paragraph Nos.2 and 3 of the affidavit evidence would stand contrary to the pleading in complaint regarding giving hand loan of Rs.4,50,000/- to the accused. Complainant has also failed to establish the nexus between payment of Rs.3 Lakhs by way of cheque on 22.07.2009 - Ex.P6 to the transaction covered under cheque - Ex.P1. Complainant in the cross- examination has given again totally different version that he has given money of Rs.4,50,000/- in three installments to the accused. However, to evidence the said fact there are no any documents or requisite evidence to prove the said fact. The said circumstance would create serious doubt in the claim of complainant that accused has issued cheque in question - Ex.P1 for lawful discharge of debt.
It is in the evidence of DW.1 regarding complainant taking advance of Rs.70,000/- for sale of open space belongs to his father-in-law. The documents at Exs.D2 to D7 would go to show that accused and her husband is known to complainant and there are transaction between complainant and accused. Further, accused was also surety for the loan transaction of complainant in the Society. The deposit of Rs.3 Lakhs by way of cheque shown in Ex.P6 is dated 22.07.2009 would go to show that there was earlier transaction of complainant with accused. Complainant has failed to establish the nexus of the said transaction evidence from Ex.P6 with the transaction covered under cheque - Ex.P1. Therefore, the possibility of complainant coming in possession of the cheque of accused with respect to any earlier transaction cannot be totally ruled out.
The Trial Court has rightly appreciated the oral and documentary evidence placed on record in holding that the complainant has failed to prove that accused has issued the cheque in question - Ex.P1 for lawful discharge of debt. The said findings recorded by the Trial Court is based on the material placed on record and the same does not call for any interference by this Court.
Appeal dismissed.
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2024 (3) TMI 172
Dishonor of Cheque - suspension of sentence and criminal appeal - Validity of imposing a condition of depositing 20% of the compensation amount - Violation of principles of natural justice - order, where no reasoning has been given by the Lower Appellate Court, while issuing notice in the appeal but to grant bail and suspension of sentence subject to deposit compensation - HELD THAT:- This Court after having heard learned counsel for the petitioner with respect to the rationality of the order passed by the Lower Appellant Court in not giving any reason for deposit of 20 % of compensation amount, is of the view that no doubt that it is a statutory liability under Section 148 of Negotiable Instruments Act, which is enforceable by the Lower Appellate Court and has been very justifiably so ordered, therefore, this Court does not press for further reasoning to be mentioned in the order as to why 20 % compensation amount is to be deposited, rather the onus would be upon the petitioner-appellant to make out a case of an exception, if at all to show his inability to deposit the 20 % of compensation amount that too once he has been proved guilty and convicted by the trial Court for the offence under Section 138 of Negotiable Instruments Act, whereby cheque amounting to Rs.6,00,000/- issued by him was dishonoured, which has been ordered as compensation.
Even before this Court, no such reason has been stated by learned counsel for the petitioner during the course of hearing or in the petition so pleaded at all that his case is covered under the ratio of JAMBOO BHANDARI VERSUS M.P. STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD. AND ORS. [2023 (9) TMI 560 - SUPREME COURT], wherein the Hon'ble Apex Court has made it abundantly clear that Appellate Court will be justified in imposing the condition of deposit as provided under Section 148 of Negotiable Instruments Act, but only in a case, if it is satisfied that condition of such deposit will be unjust or imposing of such condition will amount to deprivation of right to appeal of the appellant, an exception can be made with the reason specifically recorded.
This Court considered the question of validity for imposing the restriction to deposit 20% of the compensation amount as a pre-requisite for suspending the sentenced on the touchstone of the decision in SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND OTHERS VERSUS VIRENDER GANDHI [2019 (5) TMI 1626 - SUPREME COURT], wherein the Apex Court, after having considered the provisions of Section 148 of the NI Act and the objects and reasons for its enactment by way of Amendment No.20/2018, held that the power of the Appellate Court in directing the accused to deposit more than 20% of the fine is mandatory in nature and as such upheld such stipulation for suspension of sentence.
The reasoning given by the Lower Appellate Court would only be a case, where the Court has to grant an exception from deposit of such 20 % compensation amount, which is a prerequisite for entering into an appeal under Section 148 of Negotiable Instruments Act of the amount awarded by the trial Court under Section 357(3) Cr.P.C., and not to record reasons, wherein it is an obligation as per the provisions of Negotiable Instruments Act itself and hence such an argument does not hold good and is not acceptable.
Petition dismissed.
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2024 (3) TMI 171
Suit for recovery of money on the foot of promissory note - Burden/onus to prove - Whether or not the burden is on the plaintiff to prove that the promissory note is given for valid consideration or proving the execution of promissory note is sufficient in view of Section 118 of Negotiable Instruments Act? - burden shifts on the respondent/defendants immediately on plaintiff proving the execution of Promissory Note or not - burden is on the plaintiff to prove the Promissory Note is supported by consideration, while the defendant had admitted the signature contained in Promissory Note in view of Section 101, 102 of Indian Evidence Act or not.
HELD THAT:- The plaintiff, having prima facie proved to the court that the signatures were those of the defendants by examination of the attesting witnesses, the least that the defendants should have done was take out an application for appointment of an advocate commissioner to take the document to the forensic science laboratory and have obtained a report that the document is an act of forgery and does not contain their signatures. Unfortunately for Mr.N.Subramani, this act has not been done. This will also answer the argument of Mr.N.Subramani that the address of the attesting witnesses had not been mentioned in the document.
The basis on which the said acquittal had been rendered, had not been made available to the court. A party relying upon a document must produce the document before the court and the mere fact that they have pleaded in the written statement about its pendency is insufficient for the court to conclude otherwise - the lower appellate court has not even discussed the scope of Section 118 of the Negotiable Instruments Act. In a suit based on the Negotiable Instruments Act, the presumption under Section 118 is a crucial point on law and in fact, not having been referred to, it amounts to the learned Appellate Judge ignoring the vital provisions of law and thus, requires interference.
The substantial questions of law are answered in favour of the appellant and against the respondents - Second appeal is allowed.
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2024 (3) TMI 121
Appointment of an arbitrator for the adjudication of disputes - Applicability of time limitation - Section 11(6) of the Arbitration and Conciliation Act, 1996 - agreement entered into between the parties for the AELA- failure of the respondent in nominating an arbitrator as per the mutually agreed upon procedure in response to notice for invocation of arbitration.
Whether the Limitation Act, 1963 is applicable to an application for appointment of arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996? If yes, whether the present petition is barred by limitation? - HELD THAT:- There is no doubt as to the applicability of the Limitation Act, 1963 to arbitration proceedings in general and that of Article 137 of the Limitation Act, 1963 to a petition under Section 11(6) of the Act, 1996 in particular. Having held thus, the next question that falls for determination is whether the present petition seeking appointment of an arbitrator is barred by limitation.
The determination of the aforesaid question is an exercise involving both law and facts. As is evident from Article 137 of the Limitation Act, 1963, the limitation period for making an application under Section 11(6) of the Act, 1996 is three years from the date when the right to apply accrues. Thus, to determine whether the present petition is barred by limitation, it is necessary to ascertain when the right to file the present petition under Section 11(6) of the Act, 1996 accrued in favour of the petitioner.
When does the right to apply under Section 11(6) accrue? - HELD THAT:- The request for appointment of an arbitrator was first made by the petitioner vide notice dated 24.11.2022 and a time of one month from the date of receipt of notice was given to the respondent to comply with the said notice. The notice was delivered to the respondent on 29.11.2022. Hence, the said period of one month from the date of receipt came to an end on 28.12.2022. Thus, it is only from this day that the clock of limitation for filing the present petition would start to tick. The present petition was filed by the petitioner on 19.04.2023, which is well within the time period of 3 years provided by Article 137 of the Limitation Act, 1963. Thus, the present petition under Section 11(6) of the Act, 1996 cannot be said to be barred by limitation.
Whether the court may refuse to make a reference under Section 11 of Act, 1996 where the claims are ex-facie and hopelessly time-barred? - HELD THAT:- The present petition filed by the petitioner is not barred by limitation.
Whether the claims sought to be arbitrated by the petitioner are ex-facie barred by limitation, and if so, whether the court may refuse to refer them to arbitration? - Jurisdiction versus Admissibility - HELD THAT:- From the email communications placed on record, it appears that due to the pre-existing disputes between the parties in relation to the franchise agreements, the respondent sent a demand notice to the petitioner seeking payment of royalty and renewal fees from the petitioner. It appears that in reply to the said notice dated 23.03.2018, the petitioner raised the issue of payment of dues relating to the ICCR project. Some more emails were exchanged between the parties on the issue however it can be seen that vide email dated 28.03.2018, the respondent clearly showed unwillingness to continue further discussions regarding payments related to the ICCR project. Thus, it can be said that the rights of the petitioner to bring a claim against the respondent were crystallised on 28.03.2018 and hence the cause of action for invocation of arbitration can also said to have arisen on this date.
When does the Cause of Action arise? - HELD THAT:- The balance limitation left on 15.03.2020 would become available w.e.f. 01.03.2022. The balance period of limitation remaining on 15.03.2020 can be calculated by computing the number of days between 15.03.2020 and 27.03.2021, which is the day when the limitation period would have come to an end under ordinary circumstances. The balance period thus comes to 1 year 13 days. This period of 1 year 13 days becomes available to the petitioner from 01.03.2022, thereby meaning that the limitation period available to the petitioner for invoking arbitration proceedings would have come to an end on 13.03.2023.
When is Arbitration deemed to have commenced? - HELD THAT:- In the present case, the notice invoking arbitration was received by the respondent on 29.11.2022, which is within the three-year period from the date on which the cause of action for the claim had arisen. Thus, it cannot be said that the claims sought to be raised by the petitioner are ex-facie time-barred or dead claims on the date of the commencement of arbitration - from an exhaustive analysis of the position of law on the issues, while considering the issue of limitation in relation to a petition under Section 11(6) of the Act, 1996, the courts should satisfy themselves on two aspects by employing a two-pronged test – first, whether the petition under Section 11(6) of the Act, 1996 is barred by limitation; and secondly, whether the claims sought to be arbitrated are ex-facie dead claims and are thus barred by limitation on the date of commencement of arbitration proceedings. If either of these issues are answered against the party seeking referral of disputes to arbitration, the court may refuse to appoint an arbitral tribunal.
The present arbitration petition having been filed within a period of three years from the date when the respondent failed to comply with the notice of invocation of arbitration issued by the petitioner is not hit by limitation - The notice for invocation of arbitration having been issued by the petitioner within a period of three years from the date of accrual of cause of action, the claims cannot be said to be ex-facie dead or time-barred on the date of commencement of the arbitration proceedings.
Shri Justice Sanjay Kishan Kaul, Former Judge of the Supreme Court of India, appointed to act as the sole arbitrator - petition allowed.
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2024 (3) TMI 120
Recovery of narcotics from a vehicle which was stopped during transit - Ganja - contraband item - procedure of search and seizure governed by Section 43 read with Section 49 of the NDPS Act - HELD THAT:- Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot. The offence under Section 20(b)(ii)(c) deals with production, manufacture, possession, sale, purchase, transport, import or export of cannabis. It is not the case of the prosecution that the accused A-3 and A-4 were found in possession of ganja. The highest case of the prosecution which too is not substantiated by any admissible or tangible evidence is that these two accused had conspired sale/purchase of ganja with A-1 and A-2. The entire case of the prosecution as against these two accused is based on the interrogation notes of A-1 and A-2.
It is trite that confession of an accused recorded by a Police Officer is not admissible in evidence as the same is hit by Section 25 of the Evidence Act. Neither the trial Court nor the High Court adverted to this fatal flaw in the prosecution case and proceeded to convict A-3 and A-4 in a sheerly mechanical manner without there being on iota of evidence on record of the case so as to hold them guilty.
The prosecution has miserably failed to prove the charges against the accused. The evidence of the police witnesses is full of contradictions and is thoroughly unconvincing. The conviction of the accused appellants as recorded by the trial Court and affirmed by the High Court is illegal on the face of record and suffers from highest degree of perversity.
The judgment dated 10th November, 2022 passed by the High Court affirming the judgment of the trial Court convicting and sentencing the accused appellants for the charge under Section 8(c) read with 20(b)(ii)(c) of the NDPS Act is hereby quashed and set aside. The appellants are acquitted of all the charges - Appeal allowed.
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2024 (3) TMI 119
Declaration of Petitioner as a Wilful Defaulter under the Master Circular on Wilful Defaulters, 2015 - depriving the Petitioner from availing credit facilities for his present and prospective business enterprises - HELD THAT:- In the present case, the satisfaction to issue Show Cause Notice does not appear to have been recorded in accordance with the requirements of the Master Circular. Keeping the object of the Master Circular in mind and the consequences that it entails, both civil and penal, the lender banks have an obligation to comply with the inbuilt safeguards in the Master Circular. Lest, the line between persons who commit mere default in repayment of loan obligations and those who commit Wilful Default in terms of the Master Circular, would get obliterated.
Whether the Petitioner committed acts of Wilful Default? - HELD THAT:- The Forensic Audit Report only observed that it is not in a position to comment on their nature of loans and advances made to M/s Value Solar Energy Ltd., as necessary documents were not available. Merely because necessary documents were unavailable to the Forensic Auditor, the Respondent Bank could not have drawn an inference of diversion of funds. In doing so, the Respondent Bank failed to adhere to the requirement of Clause 2.1.3 read with Clause 2.5 of the Master Circular to identify “Wilful Default” which is “intentional, deliberate and calculated” and based on “objective facts and circumstances of the case”. The Respondent Bank cannot merely quote an observation from the Forensic Audit Report, which itself is not conclusive, and conclude that the same amounts to the diversion of funds.
The Petitioner did not furnish his personal guarantee for the CDR package nor did he participate in any of the deliberations for the approval of the CDR package. The lender banks still approved the CDR package and acted upon it without the presence and personal guarantee of the Petitioner. The lender banks, therefore, tacitly acquiesced to the Petitioner’s exit from MBSL and approved the CDR package of MBSL without his presence in any capacity or personal guarantee - Further, the undertaking relied upon by the Respondent Bank was not given by the Petitioner but by MBSL. Hence, if there exists a breach of the said undertaking, the remedy, if any, lies against MBSL and elsewhere and not against the Petitioner - thus, resignation from a company per se is not an act of Wilful Default under the Master Circular.
Effect of Forensic Audit Report - HELD THAT:- Even under the Indian Evidence Act, 1872, the opinion of an expert witness under Section 45 is not a conclusive proof. It is subject to cross-examination and the opinion and conclusions of an Expert are subject to challenge. In the present scheme of things, the Master Circular casts a specific obligation on the Respondent Bank to act independently and objectively under Clause 2.1.3 read with Clause 2.5 as discussed above. It would, therefore, be unsafe if lender banks start to declare borrowers as Wilful Defaulter merely on the basis of observations made in the Forensic Audit Report without there being an independent application of mind. The lender banks must follow the mandate of Clause 2.1.3 read with Clause 2.5 of the Master Circular and independently find acts of Wilful Default which are “intentional, deliberate and calculated” and the said conclusion should be based on “objective facts and circumstances of the case”. Any other view would lead to consequences where mere cases of default would be categorised as acts of Wilful Default under the Master Circular. The Master Circular is not to be invoked in every case of default but only when the default is Wilful Default as construed under the scheme of the Master Circular.
Identification of Wilful Default has to be made keeping in view the track record of the borrower and not on the basis of isolated transactions/incidents - HELD THAT:- The FRS, does not show a consistent negative track record of MBSL. MBSL was seen as a global player in photovoltaic cells. It had presence in several countries. It had serviced its debt and largely repaid the principal dues. The Respondent Bank, under Clause 2.1.3 read with Clause 2.5, was obligated to reflect upon the entire track record of MBSL and then conclude whether there existed events of Wilful Default and not on the basis of isolated transactions/incidents.
Consequences of admitting MBSL for CDR under the CDR Scheme - HELD THAT:- This Court is of the view that it is incumbent upon banks who are dealing with public funds and discharging a public duty to make appropriate enquiries as to whether a borrower is in genuine financial difficulty or whether there exist events of fraud and malfeasance. If the lender banks find fraud or malfeasance, the CDR-EG must either refuse CDR completely or impose such additional onerous conditions as provided in the CDR Scheme itself - In the present case, the lender banks were fully aware of all the transactions, which are now alleged to be acts of Wilful Default. This fact is part of the documents leading to the finalization of the CDR scheme. Despite noting all transactions, financial statements, balance sheets, TEV Report and Stock Audit Report, the lender banks placed MBSL in Class-B of CDR Master Circular which cannot be assigned if there is diversion of funds. They found no occasion to order a forensic audit of MBIL before finalization of CDR scheme. The lender banks, therefore, never treated the alleged acts of Wilful Default as an act of diversion or siphoning either during finalization of CDR scheme or after its failure.
The lender banks may become aware of such acts subsequently, may be, on their own, or on the basis of subsequent Forensic Audit Report. Having considered such acts, which were known subsequently, the lender banks may take an objective decision under the Master Circular on whether such acts constitute Wilful Default or not. In such a situation, the mere fact that an earlier CDR Scheme was finalised and nothing negative was flagged at that stage, may not come in way of the lender banks in invoking jurisdiction under the Master Circular. However, it may not be open for lender banks to classify known acts as events of Wilful Default merely because subsequently, in respect of the same known acts, the Forensic Audit Report has made certain observations. To declare a person as a Wilful Defaulter, lender banks have to independently find that the “Wilful Default” is “intentional, deliberate and calculated” and the said conclusion is based on “objective facts and circumstances of the case”, as required under the Master Circular. The Forensic Audit Report, at best, can act as a piece of corroboration for the said exercise, but not the sole basis.
The reasons assigned in the impugned order dated 20.04.2023 passed by the Review Committee confirming the Petitioner as Wilful Defaulter under the Master Circular are unsustainable and the impugned order is accordingly, quashed and set aside - Petition allowed.
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2024 (3) TMI 63
Automatic Vacation of the interim order / Stay Order after six months - judicial legislation or not - Whether this Court, in the exercise of its jurisdiction under Article 142 of the Constitution of India, can order automatic vacation of all interim orders of the High Courts of staying proceedings of Civil and Criminal cases on the expiry of a certain period? - Whether this Court, in the exercise of its jurisdiction under Article 142 of the Constitution of India, can direct the High Courts to decide pending cases in which interim orders of stay of proceedings has been granted on a day-to-day basis and within a fixed period?
HELD THAT:- There cannot be automatic vacation of stay granted by the High Court. The direction issued to decide all the cases in which an interim stay has been granted on a day-to-day basis within a time frame, not approved. Such blanket directions cannot be issued in the exercise of the jurisdiction under Article 142 of the Constitution of India - both the questions framed is answered in the negative.
Following conclusions have been arrived:
a. A direction that all the interim orders of stay of proceedings passed by every High Court automatically expire only by reason of lapse of time cannot be issued in the exercise of the jurisdiction of this Court under Article 142 of the Constitution of India;
b. Important parameters for the exercise of the jurisdiction under Article 142 of the Constitution of India which are relevant for deciding the reference are as follows:
(i) The jurisdiction can be exercised to do complete justice between the parties before the Court. It cannot be exercised to nullify the benefits derived by a large number of litigants based on judicial orders validly passed in their favour who are not parties to the proceedings before this Court;
(ii) Article 142 does not empower this Court to ignore the substantive rights of the litigants;
(iii) While exercising the jurisdiction under Article 142 of the Constitution of India, this Court can always issue procedural directions to the Courts for streamlining procedural aspects and ironing out the creases in the procedural laws to ensure expeditious and timely disposal of cases. However, while doing so, this Court cannot affect the substantive rights of those litigants who are not parties to the case before it. The right to be heard before an adverse order is passed is not a matter of procedure but a substantive right; and
(iv) The power of this Court under Article 142 cannot be exercised to defeat the principles of natural justice, which are an integral part of our jurisprudence.
c. Constitutional Courts, in the ordinary course, should refrain from fixing a time-bound schedule for the disposal of cases pending before any other Courts. Constitutional Courts may issue directions for the time-bound disposal of cases only in exceptional circumstances. The issue of prioritising the disposal of cases should be best left to the decision of the concerned Courts where the cases are pending; and
d. While dealing with the prayers for the grant of interim relief, the High Courts should take into consideration the guidelines prescribed.
The reference is answered accordingly.
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2024 (2) TMI 1477
Interplay between the provisions of Chapter IX of the Food Safety and Standards Act, 2006 (FSSA) and Sections 272 and 273 of the Indian Penal Code (IPC) - HELD THAT:- There are very exhaustive substantive and procedural provisions in the FSSA for dealing with offences concerning unsafe food.
As per Section 89 of the FSSA, the title of the section indeed indicates that the intention is to give an overriding effect to the FSSA over all ‘foodrelated laws’. However, in the main Section, there is no such restriction confined to ‘foodrelated laws’, and it is provided that provisions of the FSSA shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. So, the Section indicates that an overriding effect is given to the provisions of the FSSA over any other law. The settled law is that if the main Section is unambiguous, the aid of the title of the Section or its marginal note cannot be taken to interpret the same. Only if it is ambiguous, the title of the section or the marginal note can be looked into to understand the intention of the legislature. Therefore, the main Section clearly gives overriding effect to the provisions of the FSSA over any other law in so far as the law applies to the aspects of food in the field covered by the FSSA.
The decision of this Court in the case of Swami Achyutanand Tirth [2013 (12) TMI 1753 - SUPREME COURT] does not deal with this contingency at all. In the case of the State of Maharashtra [2018 (9) TMI 1803 - SUPREME COURT], the question of the effect of Section 97 of the FSSA did not arise for consideration of this Court. The Court dealt with simultaneous prosecutions and concluded that there could be simultaneous prosecutions, but conviction and sentence can be only in one. This proposition is based on what is incorporated in section 26 of the GC Act - there are no manner of doubt that by virtue of Section 89 of the FSSA, Section 59 will override the provisions of Sections 272 and 273 of the IPC. Therefore, there will not be any question of simultaneous prosecution under both the statutes.
The impugned orders are set aside - appeal allowed.
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2024 (2) TMI 1448
Seeking grant of bail - recovery of contraband Ganja (cannabis) - drawing of samples as per Section 52A of the NDPS Act or not - delay in trial - Delay in sampling and compliance of Section 52A of the NDPS Act.
HELD THAT:- There can be no doubt on the proposition that for being released on bail, the accused/appellant must satisfy the conditions as stipulated in Section 37 of the NDPS Act. There can also be no dispute that keeping in view the nature of offence, there is no occasion for applying the more liberal principles for grant of bail to the accused under the NDPS Act where the offence involves commercial quantity.
Error in procedure of sampling - HELD THAT:- In the present case, therefore, as there is a non-compliance with the procedure prescribed for sampling, the applicant is entitled to be released on bail.
Delay in trial - HELD THAT:- In Manmandal [2023 (9) TMI 1568 - SC ORDER], the accused therein had been in custody for almost two years and the Court found that the trial is not likely to be taken up for hearing in the immediate near future. The accused was, therefore, released on bail - in the present case, the applicant being in custody since 08.6.2021; and only 2 out of 22 witnesses having been examined in the trial, that that too only partially; coupled with the other factors as have been discussed in this judgment, the applicant is entitled to be released on bail on account of the delay in trial and there being no likelihood of it being concluded in the near future.
Delay in sampling and compliance of Section 52A of the NDPS Act - HELD THAT:- The applicant has also made out a case for being released on bail on the grounds of delay in the sampling procedure being carried out under Section 52A of the NDPS Act. As noted hereinabove, the alleged recovery has been made from the applicant on 08.06.2021; the application under Section 52A of the NDPS Act was filed by the prosecution only on 30.07.2021; and the samples were drawn only on 04.09.2023, that is, with a delay of almost three months - In Kashif [2023 (5) TMI 1383 - DELHI HIGH COURT], a Coordinate Bench of this Court considered the effect of delay in the sampling procedure, held that even a delay of one and a half months, as was the case therein, raises a doubt sufficient enough to entitle the accused to be released on bail.
The applicant has been able to make out a case for being released on bail on application of the test prescribed under Section 37 of the NDPS Act - it is directed that the applicant be released on bail in FIR No. 0285/2021 registered at Police Station: Sagarpur, South-West District, Delhi, under Sections 20/61/85 of NDPS Act in SC No. 420/2022 on furnishing a personal bond in the sum of Rs. 50,000/-with one local surety, each, of the like amount, subject to the fulfilment of conditions impsosed - bail application allowed.
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2024 (2) TMI 1440
Seeking grant of bail - smuggling - recovery of contraband - Ganja/Bhang - offence(s) under Section 8/20 of the NDPS Act - HELD THAT:- The leaves of cannabis plant containing 28.600 gms are shown to be recovered from the accused-petitioner. Section 2 (iii)(b) of the NDPS Act contains the definition of Ganja and as per definition clause flowering of fruiting tops of cannabis plant falls within the ambit of Ganja. The seeds and leaves without tops are not termed as Ganja. Therefore, without commenting anything on the merits/demerits of the case, it is deemed just and proper to enlarge the accused-petitioner on bail.
The bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner Rajesh Sharma S/o Murari Lal in connection with FIR No.32/2024 registered at Police Station Khandar, District Sawai Madhopur shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.
Bail application allowed.
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2024 (2) TMI 1439
Seeking grant of regular bail - recovery of 135 grams of Cocaine was made from the house of the co-accused - case of the prosecution is based upon the disclosure of the co-accused Justin Izuchukwu Samuel - HELD THAT:- It is relevant to note that while the veracity of the disclosure statement of the co-accused is to be tested at the time of the trial, however, this Court cannot lose sight of the decision of the Hon’ble Apex Court in the case of TOFAN SINGH VERSUS STATE OF TAMIL NADU [2020 (11) TMI 55 - SUPREME COURT]. It was held that a disclosure statement made under Section 67 of the NDPS Act is impermissible as evidence without corroboration.
The present case relates to the recovery made from the coaccused on 18.06.2021. The WhatsApp chats, even assuming to be in relation to the sale and purchase of contraband, at this stage, do not appear to be in relation to the recovery made, which led to filing of the complaint in the present case - It is not the case of the prosecution that, at the contemporaneous time, the applicant was in contact with the co-accused in relation to the contraband which was seized from the co-accused on 18.06.2021.
The Courts are not expected to accept every allegation made by the prosecution as a gospel truth. The bar, as provided in Section 37 of the NDPS Act, cannot be invoked where the evidence against the accused appears to be unbelievable and does not seem to be sufficient for the purpose of conviction of the accused - In the present case, the prosecution has been given an adequate opportunity to oppose the present application. In view of the facts of the case, prima facie, this Court is of the opinion, that at this stage there are reasonable grounds to believe that the applicant is not guilty of the alleged offences. Moreover, it is also not disputed that the applicant has clean antecedents, and is thus not likely to commit any offence whilst on bail.
The applicant is directed to be released on bail on furnishing a personal bond for a sum of ₹20,000/- with two sureties of the like amount, subject to fulfilment of conditions imposed - bail application allowed.
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2024 (2) TMI 1431
Seeking appointment of an Arbitrator in terms of Clause 27 of the Master Loan Agreement - Impleadment of respondent Nos. 3 to 5 in the arbitration proceedings - signatory to the arbitration agreement - HELD THAT:- Admittedly, in the present case, the respondent Nos.1 and 2 are the parties to the Loan Agreement and there cannot be any doubt with regard to the Loan Agreement being valid and binding between the petitioner and the respondent Nos. 1 and 2.
The respondent Nos. 3 to 5 are a veritable party to the Loan Agreement as they are connected with the loan documents and form part of the loan transaction as in one way or the other, they have assured the petitioner regarding the execution of the loan documents and provided a security to the petitioner towards the loan transaction.
Further, the fact that whether the respondent Nos. 3 to 5 can be bound by the Loan Agreement and can be impleaded as parties to the arbitral proceedings is left open for the to Arbitral Tribunal decide. Also, the Arbitral Tribunal will also decide whether M/s SMC Global Securities Limited is a proper and necessary party to the arbitral proceedings.
Justice Ali Mohammad Magray (Retd.) (Chief Justice of J&K) is appointed as a Sole Arbitrator to adjudicate the disputes between the parties - The arbitration will be held under the aegis of the Delhi International Arbitration Centre, Delhi High Court, Sher Shah Road, New Delhi hereinafter, referred to as the ‘DIAC’). The remuneration of the learned Arbitrator shall be in terms of the Fourth Schedule of the Arbitration & Conciliation Act, 1996.
Petition allowed.
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2024 (2) TMI 1428
Illegal gratification - Legality of the arrest - Seeking quashing of FIR registered u/s 120 B and Section 420 of the Indian Penal Code and Section 7 and 13(2) r/w. 13(1)(d) of the prevention of Corruption Act, 1988 - seeking quashing of arrest of the petitioners being in violation of settled tenets of law under Section 46 and 41A (3) of Cr.P.C. - seeking quashing of remand order and subsequent orders passed by the learned Special Judge, CBI - sanction of credit facilities/ high value loan to the Videocon Group of Companies promoted by Venugopal Dhoot, in violation of the Banking Regulation Act under RBI guidelines and the credit policy of the Bank.
HELD THAT:- Section 41A was inserted to avoid routine arrests. This section mandates issuance of notice ‘where the arrest of a person is not required under Sub Section (1) of Section 41. This provision casts an obligation on such person to comply with the provision and further restricts the power to arrest when such person complies or continues to comply with the terms of notice, unless the police officer is of the opinion that the arrest is necessary, and further mandates to record to reasons for the arrest.
In Satyendra Kumar Antil [2022 (8) TMI 152 - SUPREME COURT] the Apex Court has observed that Sections 41 and 41A are facets of Article 21 of the Constitution of India, and the Investigating Agencies and their officers are duty bound to comply with the mandate of the said provisions as well as the directions issued in Arnesh Kumar vs. State of Bihar [2014 (7) TMI 1143 - SUPREME COURT].
The scope and ambit of Section 41 and 41A as well as the dictum of the Apex Court in Satyender Kumar Antil, Arnab Goswami etc was considered by the co-ordinate Bench of this Court while granting interim bail to the petitioners for non compliance of the mandate of Section 41A - the interim order does not substantially decide the rights, liability or lis between the parties and that the interim order is always subject to the final order, which will adjudicate the final rights and liabilities of the parties. Hence, there can be no gainsaying that the prima facie observation or tentative view expressed at interim stage is not binding at the final adjudication.
There can be no dispute that it is within the domain of the Investigating Agency to interrogate the accused and to arrive at a subjective satisfaction on the issue of arrest. The satisfaction of the investigating agency is subjective in nature and the Court cannot go into the reasonableness of the reasons of arrest and or substitute its objective opinion for the subjective satisfaction. Nevertheless, the subjective satisfaction is not wholly immune from judicial reviewability.
In the instant case, the preliminary enquiry relating to the sanctioning of loan to the Videocon Group of Companies in violation of Banking Regulations and Guidelines since the year 2009 to 2012 was registered in the year 2017. The petitioners were questioned in the course of the preliminary inquiry, and subsequently the FIR was registered on 22.01.2019. The petitioners were named as accused in the said FIR for the alleged offences of criminal conspiracy and cheating - in compliance with the notice dated 15.12.2022, under Section 41A, the petitioners appeared before the Investigating Agency on 23.12.2022. It is on this date that they were placed under arrest, on the ground of non co-operation and purportedly to unearth the entire gamut of conspiracy which led to sanctioning of term loan of Rs. 1875 Crores to financially beleaguered Videocon Group of Companies between June 2009 to April 2012.
The allegations that the petitioners are involved in the conspiracy, similarly the gravity of the offence and alleged quid pro quo were to the knowledge of the Investigating Agency as on the date of the registration of the FIR. The FIR states that the loan sanctioning Committees of ICICI Bank had sanctioned loan to Videocon Group of Companies. Some of the senior officials of ICICI Bank were also named in the first information report, and it was stated that the role of these senior officers of the sanctioning committee was also required to be investigated. Thus the involvement of the other bank officials in the conspiracy was not discovered in the course of the investigation but were to the knowledge of the Investigating agency, as on the date of registration of the FIR, despite which the Investigating Agency did not feel the need to arrest and interrogate the petitioners for a period of over three years.
The Investigating agency has not been able to demonstrate existence of circumstances or supportive material on the basis of which the decision to arrest was taken. Absence of such circumstances, information or material which is the sine qua non for the decision of arrest reduces the provision a dead letter and renders the arrest illegal.
In the instant case, the petitioner Chanda Kochhar was arrested before sunset. Hence, sub section (4) of Section 46 is not attracted. The decisions relied upon are therefore distinguishable. The case diary reveals that the arrest was in presence of a lady police officer. There is nothing on record to prima facie indicate that the petitioner was physically touched by a male police officer. No complaint in this regard was made to the Judge before whom the petitioner was produced for remand - there was no contravention of Section 46 or 60A Cr.P.C.
The arrest of the petitioners is held to be illegal for breach of mandatory provision under Section 41A Cr.P.C. Hence the petition is allowed.
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2024 (2) TMI 1412
Acquittal of all the four Respondents of the charges under Section 302 read with Section 34 of the Indian Penal Code, 1860 - whether a case is made out for interference by this Court under Article 136?
Scope of Interference - HELD THAT:- There is no gainsaying that once the appellate court acquits the accused, the presumption of innocence as it existed before conviction by the Trial Court, stands restored, and this Court, while scrutinizing the evidence, will proceed with great circumspect and will not routinely interfere with an order of acquittal, save when the impeccable prosecution evidence nails the accused beyond any doubt. In other words, where on consideration of the material on record, even if two views are possible, yet this Court, while exercising powers under Article 136 of the Constitution, will not tinker with an order of acquittal.
STATE OF KARNATAKA VERSUS SELVI J. JAYALALITHA AND ORS. AND K. ANBAZHAGAN VERSUS SELVI J. JAYALALITHA AND ORS. ETC. AND INDO DOHA CHEMICALS & PHARMACEUTICALS AND ORS. ETC [2017 (2) TMI 926 - SUPREME COURT] does acknowledge that a judgment of acquittal strengthens the presumption of innocence in favour of the accused. Nevertheless, the caveat is that the court must not shy away from its responsibility to prevent a miscarriage of justice and must intervene when necessary. If the acquittal is based on irrelevant grounds, if the High Court allows itself to be misled by distractions, if the High Court dismisses the evidence accepted by the Trial Court without proper consideration, or if the High Court's flawed approach leads to the neglect of vital evidence, this Court is obligated to intervene to uphold the interests of justice and address any concerns within the judicial conscience.
An erroneous or perverse approach to the proven facts of a case and/or ignorance of some of the vital circumstances would amount to a grave and substantial miscarriage of justice. In such a case, this Court will be justified in exercising its extraordinary jurisdiction to undo the injustice mete out to the victims of a crime.
Acquittal order qua Gurpreet Singh (main accused) - The prosecution case is that the occurrence took place inside the house. When the police reached the spot immediately after the occurrence, the dead body was found lying inside the house near the stairs. It is, thus, natural that the residents in the adjoining houses did not see the occurrence. The shot was fired at close range, and, the people in the neighbourhood obviously did not come to know about the incident. No adverse inference can be drawn against the prosecution on this count. The time of occurrence, i.e., 1.30 p.m., also indicates that most of the people in the neighbourhood were inside their houses and could not be expected outside in the streets keeping in view the hot and humid weather of July as it prevails in the State of Punjab - sustaining the acquittal of Gurpreet Singh, would amount to a travesty of justice and it, thus, warrants interference by this Court in the exercise of its jurisdiction, which we invoke sparingly. Consequently, the order of acquittal passed by the High Court qua Gurpreet Singh cannot be sustained and is set aside.
Acquittal order qua the coaccused - The Investigating Officer has failed to disclose as to how he found these respondents to be connected with the crime during the course of investigation. There is no convincing explanation to implicate them as coaccused. There is also not an iota of evidence to suggest that the Respondents (Kashmira Singh, Jagdeep Singh and Harpreet Singh) had any meeting with Gurpreet Singh and/or they had conspired with him for the execution of the crime. There is no specific motive attributed to them. In such circumstances, the High Court seems right in extending the benefit of doubt qua them.
The judgment dated 05.12.2019, passed by the High Court of Punjab and Haryana at Chandigarh, acquitting Gurpreet Singh of the offence under Section 302 IPC is set aside, and that of the Trial Court convicting him and sentencing him to life imprisonment is restored. The bail bonds of Gurpreet Singh, if any, are hereby cancelled - Appeal allowed in part.
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2024 (2) TMI 1404
Seeking unconditional stay of an Arbitral Award - proviso to section 36(3) of The Arbitration and Conciliation Act, 1996 - petitioner prays for unconditional stay on the ground that the Arbitration Agreement was induced by fraud - HELD THAT:- In the present case, the petitioner seeks to make out a case of fraud on the part of the respondent on account of the respondent's alleged non-disclosure of the orders passed by the PNGRB ad the Delhi High Court at the relevant point of time. The presumption is that the petitioner would not have entered into the agreement with the respondent had the respondent disclosed these orders. The case argued is that the petitioner was induced into executing the Arbitration Agreement/GSPA with the respondent on the fraudulent misrepresentation that the respondent was free to supply CBM gas to the petitioner for 25 years.
The series of orders passed by the PNGRB and the Delhi High Court shows that first, there was, in fact, no restraint on the respondent at any point of time, material or otherwise, to perform or continue to perform the Agreement in the terms thereof. Second, the petitioner was all along aware of the orders of the PNGRB and the Delhi High Court from 2010-11 onwards as would appear from the respondent's Balance Sheets for relevant years. Even if it is assumed that the petitioner/ or its witness did not check the particular pages in the Balance Sheets disclosing the orders, such oversight would fall within the exception to section 19 of the Contract Act which sets the standard to "ordinary diligence" of the party who complains, that the truth could easily have been discovered - the petitioner has made vague and omnibus allegations without any particulars of the fraud committed on the part of the respondent.
It is evident from the records that the petitioner's only intention for filing the present application is to avoid making any deposit for securing the award. This would also be clear from the prayer in the application GA 1 of 2022. The respondent/award-holder has been deprived of the fruits despite the award being of 21.6.2022. The Court, hence, sees no impediment for the respondent to execute the award unless the petitioner secures the award on appropriate terms - The awarded amount was Rs. 58,50,45,169/-along with interest as on 21.6.2022. The accrued interest and the amount payable along with principal sum as on 13.9.2022 is approximately Rs. 89.71 crores. The respondent has calculated the outstanding amount of Rs. 101,39,93,149/-till 23.2.2024. Since the Court has recorded its lack of satisfaction on the prima facie case made out by the petitioner/award-debtor on the Arbitration Agreement being induced/effected by fraud, the prayer for unconditional stay of the award is rejected.
Application dismissed.
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2024 (2) TMI 1398
Assigning of a declaratory decree quashed - classification of disputed land - entry of Shamlat Deh Hasab Rasab Khewat exist in the jamabandis or not - HELD THAT:- The classification as, assigned to the disputed lands in the apposite classification column, thus also prima facie makes the disputed lands to be unamenable for cultivation. If so, since within the scope of the above extracted savings clause to the definition of Shamlat Deh, it is but imperative, that the suit lands were amenable to cultivation, whereas, ex facie the import of the classification, assigned to the disputed lands, is that, they are uncultivable, thereby the petitioners who otherwise have also not brought forth any evidence suggestive that they earlier had or as of now rather made them cultivable, thus through theirs adducing the relevant Khasra Girdawaris, thereupon the disputed lands with the above classifications, are evidently untillable or uncultivable.
The present petitioners cannot claim that they had at any time made them exclusively cultivable for their benefit, and, to the deprivation of the other members of the village proprietary body.
Prior to the holding of the consolidations operations, the lands were used for the common purpose of the entire village community, and, thereby were kept intact in the very same manner, resulting in a valid mutation of ownership becoming attested qua the Gram Panchayat concerned, vis-a-vis, the disputed lands.
Petition dismissed.
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2024 (2) TMI 1391
Commission of murder - challenge to order of conviction of the High Court and praying for a declaration of innocence - reason to disbelieve the evidence - whether the High Court was correct in reversing the order of acquittal of the Trial Court and thereby convicting the accused persons under Section 302 IPC? - HELD THAT:- It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
The explanation as to how PW-3 spent the entire intervening night of 28- 29.06.1997 is missing from the chain of circumstances. The statement that he was simply sitting at the bus stand for the entire night, while Marthandappa was dead and PW-4 was severely injured and unconscious, fails to inspire confidence. More so, when the entire reason for hiding behind the bushes was the fear of life. Despite such fear, PW-3 did not choose to inform the police out-post, on the way from Devpura to Aidbhavi, and rather, he kept on sitting at the Devpura bus stop. He also admitted that his relatives were residing around 4 km from the place of incident at Nagara.
The circumstances in this case are far from conclusive and a conclusion of guilt could not be drawn from them. To sustain a conviction, the Court must form the view that the accused “must have” committed the offence, and not “may have”. As noted in Sharad Birdichand Sarda [1984 (7) TMI 401 - SUPREME COURT], the distinction between “may have” and “must have” is a legal distinction and not merely a grammatical one.
The High Court had erred in reversing the decision of acquittal, without arriving at any finding of illegality or perversity or error in the reasoning of the Trial Court. Even on a fresh appreciation of evidence, we find ourselves unable to agree with the findings of the High Court. Accordingly, the impugned order and judgment are set aside - Appeal disposed off.
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2024 (2) TMI 1379
Demand of bribe - Dismissal of application of the petitioner to summon relevant documents under Section 91 of Cr.P.C. - Relevance and necessity of documents for cross-examination - Stage of trial for invoking Section 91 Cr.P.C. - HELD THAT:- This Court notes that in the instant case, the petitioner herein had first moved an application under Section 91 of the Cr.P.C and vide order dated 17.12.2018 the application was allowed and relevant documents were to be supplied to the petitioner. After that vide order dated 15.04.2019, learned Trial Court had directed the CBI to accompany the petitioner to the concerned Court and mark the relevant documents required by the petitioner and to supply the same to him after applying for the certified copies of the same. Thereafter, again petitioner preferred a second application under Section 91 Cr.P.C seeking summoning of relevant documents to cross examine the complainant.
This court observes that establishing the necessity of presenting documents is sin qua non for the petitioners to facilitate the further adjudication of the case. In the instant case, the petitioner does not contend that specific documents, crucial for the prosecution's assertion of its case beyond reasonable doubt, have not been disclosed. Instead, the petitioner seeks reference to another case purportedly filed against the complainant. In the court's assessment, at this juncture when the Trial is at the stage of prosecution evidence, the petitioner has not successfully demonstrated to the satisfaction of this court why these documents are pertinent for examination at this stage.
This Court is of the opinion that right of the petitioner to move an appropriate application before the competent court to summon documents be reserved and the documents which the petitioner wishes to rely upon can be summoned at the stage of defence evidence in accordance with law. At this stage, this Court finds no ground to interfere with the impugned order dated 16.11.2019 passed by learned Special Judge, Rouse Avenue Court, New Delhi.
Petition dismissed.
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2024 (2) TMI 1297
Wrongful representation of poor landless slum dwellers - illegal and unauthorised constructions on the government land - U.P. Slum Areas (Improvement and Clearance) Act, 1962 - HELD THAT:- Admittedly, all these showrooms/workshops, engaged in furniture and related businesses, exist on main road or are immediately adjacent to it. They are getting all benefits of any regular area of the city. They have widest road possible in the city. The main road is not filthy or lacks in any possible municipal facility. Their huge showrooms/workshops cannot be called filthy, run-down or unfit for humans. It is only that their address is shown as Akbar Nagar. The actual slum, covered by aforesaid definitions, begins behind these showrooms. Thus, petitioners are not suffering any of the challenges faced by the actual slum dwellers of the said slum. In the given circumstances, it is not possible for this court to accept that the showrooms/workshops of petitioners can be called as existing in a slum area.
The documents were called for and considered to ascertain the status of Kukrail river/water channel next to the slum area and impact of slum on the said water channel. Once it is held that neither the petitioners are slum dwellers nor their establishments fall within the slum area, the said documents do not in any manner have any impact on the rights of the petitioners. Both before the prescribed authority as well as appellate authority petitioners represented themselves to be slum dwellers and did not place correct facts. Both the authorities have held proceedings and passed orders against petitioners on the basis of the said incorrect presumption.
Looking into the entirety of the matter this Court finds no reason to exercise its discretionary jurisdiction in favour of petitioners - Petition dismissed.
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