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Indian Laws - Case Laws
Showing 561 to 580 of 26761 Records
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2024 (1) TMI 174
Separation of powers - exercise of criminal contempt jurisdiction - practice of frequently summoning government officials to court - Seeking an increase in the allowance granted to former judges of the High Court for domestic help and other expenses.
Whether the High Court had the power to direct the State Government to notify Rules proposed by the Chief Justice pertaining to post-retiral benefits for former Judges of the High Court? - HELD THAT:- The High Court, acting on the judicial side, could not compel the State Government to notify Rules proposed by the Chief Justice in the purported exercise of his administrative powers. Policymaking by the government envisages various steps and the consideration of various factors, including local conditions, financial considerations, and approval from various departments. The High Court cannot use its judicial powers to browbeat the State Government to notify the Rules proposed by the Chief Justice. As the Rules were promulgated by the Chief Justice without competence, at best, they amounted to inputs to the State Government. The State Government was free to constructively consider the desirability of the Rules within its own decision-making apparatus. Therefore, the High Court acted beyond its jurisdiction under Article 226 by frequently summoning officers to expedite the consideration of the Rules and issuing directions to notify the Rules by a fixed date, under the threat of criminal contempt.
Whether the power of criminal contempt could be invoked by the High Court against officials of the Government of Uttar Pradesh on the ground that the application for recall was ‘contemptuous’? - HELD THAT:- In the present case, the State of Uttar Pradesh was availing its legitimate remedy of filing a recall application. From a perusal of the record, it appears that the application was filed in a bona fide manner. Not only had the Finance Department raised its concerns regarding the competence of the Chief Justice before the High Court but its previous conduct, including file notings of the department and letters to the Central Government, indicate that this objection had been raised by them in the past. The legal position taken by the Government in the recall application was evidently based on their desire to avail their legal remedy and not to willfully disobey the First Impugned Order.
The objections raised by the Government of Uttar Pradesh with regard to legal obstacles in complying with the First Impugned Order were never adjudicated by the High Court. Instead, the High Court regarded the objection as an attempt to obstruct justice, without even a cursory attempt to provide reasons. Applying the standards delineated above, it is clear that the actions of the government of Uttar Pradesh did not constitute even ‘civil contempt’ let alone ‘criminal contempt’. The circumstances most definitely did not warrant the High Court acting in haste, by directing that the officials present before the court be taken into custody. This summary procedure, although, permitted under Section 14 of the Contempt of Courts Act cannot be invoked as a matter of routine and is reserved for only extraordinary circumstances.
The invocation of criminal contempt and taking the government officials into custody was not warranted.
Summoning of Government Officials before Courts - HELD THAT:- Courts must refrain from summoning officials as the first resort. While the actions and decisions of public officials are subject to judicial review, summoning officials frequently without just cause is not permissible. Exercising restraint, avoiding unwarranted remarks against public officials, and recognizing the functions of law officers contribute to a fair and balanced judicial system. Courts across the country must foster an environment of respect and professionalism, duly considering the constitutional or professional mandate of law officers, who represent the government and its officials before the courts. Constantly summoning officials of the government instead of relying on the law officers representing the government, runs contrary to the scheme envisaged by the Constitution.
Standard Operating Procedure (SOP) on Personal Appearance of Government Officials in Court Proceedings, prescribed.
The impugned orders are set aside - appeal disposed off.
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2024 (1) TMI 77
Cheating - petitioner company had not only syphoned the money from the banks but have also not paid the cane dues to the farmers, who had supplied the sugar cane to the petitioner-Company - Validity of impugned communication - direction to respondent no.1, State Bank of India to convene a meeting of the Joint Lenders’ Forum forthwith, in order to finalize the Settlement Proceedings, in accordance with the provisions of the RBI Circular dated 07.06.2019.
HELD THAT:- The RBI guidelines are absolutely clear that, if a fraud is committed by the unscrupulous borrower by removal of stocks/hypothecating and disposing of the stocks, inflating the value in the stock statement and drawing excess bank finance, diversion of funds outside the borrowing unit and also due to managerial failure leading to the unit becoming sick and due to laxity in effective supervision, the banks have to report to the CBI. The instant case clearly falls under the ambit of Clause 3.2.1 and 3.2.4 where the unscrupulous borrower enjoy credit facilities under valuable banking arrangement after defrauding one of the financial banks continue to enjoy facilities of other financial banks and in some cases availed even higher limit at those banks.
As per the RBI Guidelines it is mandatory for the banks before approval of the loan to carry out a proper due diligence, credit appraisal, to consider the risk report and follow all the norms laid down. It is clearly apparent from the way the loans were sanctioned and disbursed that the banks have failed to carry out regulatory compliances. Even adequate security was not taken before disbursing the loans. A number of loans were given on the personal guarantee of two promoters, whose net-worth was far less than the loans taken by them from the banks.
It is surprising that none of the banks while sanctioning or disbursing the funds have ever checked the background of the petitioner-company. The petitioner-company was already defaulting and was NPA in the other banks but still the other banks went ahead with sanctioning huge amount of loan to the petitioner without any proper collateral security or documentation.
This is a case, which shocks conscience of the Court as to how few of the bank officers in connivance of the petitioner had advanced almost Rs.900 crores, of public money and had allowed the petitioner to syphon away the funds and did nothing but were the mute spectators when the entire fund was syphoned off. Even after the entire amount was syphoned off, the banks did not take any effective steps to recover the said amount - The RBI Circular dated 01.07.2009 mandates all the banks for classification and reporting of fraud. The said Circular does not provide any exemption or relaxation to the banks not to report regarding fraud committed by unscrupulous borrowers. Even, Clause-6 of the Circular also mandates all the Public Sector Banks to report to the Fraud Cell of CBI in cases of fraud involving more than Rs.5 crores.
In case, the CBI finds that there is a case of money laundering as per the provisions of Prevention of Money Laundering Act, 2002 they may also refer the matter to the Enforcement Directorate and take help to recover the said amount - It is further directed that the petitioner will join the investigation and cooperate with the investigation team and if they do not do so, it is open for the investigation agency to proceed against the petitioner in accordance with law. The authorities should endeavour to find out the money trail, where it has been syphoned off and parked.
Petition disposed off.
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2024 (1) TMI 4
Length / Duration of detention - preventive detention - judicial reviewability - White Collar Offender - local limits of the jurisdiction of a District Magistrate or a Commissioner of Police.
Detention Order passed under section 3(2) of the Act - whether such ‘subjective satisfaction’ of the Commissioner stands scrutiny on application of the requisite tests? - HELD THAT:- The existing legal framework for maintaining law and order is sufficient to address like offences under consideration, which the Commissioner anticipates could be repeated by the Detenu if not detained. We are also constrained to observe that preventive detention laws—an exceptional measure reserved for tackling emergent situations—ought not to have been invoked in this case as a tool for enforcement of “law and order”. This, for the reason that, the Commissioner despite being aware of the earlier judgment and order of the High Court dated 16th August, 2021 passed the Detention Order ostensibly to maintain “public order” without once more appreciating the difference between maintenance of “law and order” and maintenance of “public order”. The order of detention is, thus, indefensible.
Whether there was proper application of mind to all relevant circumstances or whether consideration of extraneous factors has vitiated the Detention Order? - HELD THAT:- Whenever an accused is tried for an offence under a penal law which carries a maximum sentence, the Court is obliged while imposing sentence to apply its mind to the specific facts and circumstances of the case and to either impose maximum sentence or a lesser sentence. It has, therefore, a discretion regarding imposition of sentence - The very term “maximum period” in section 13 vests the Government with discretion, allowing it to be exercised while considering whether the detention is to be continued for the maximum period of 12 (twelve) months or any lesser period. In our opinion, the relevant provisions of the Act have to be so read as to inhere a safeguard against arbitrary exercise of discretionary power.
The period of detention ought to necessarily vary depending upon the facts and circumstances of each case and cannot be uniform in all cases. The objective sought to be fulfilled in each case, whether is sub-served by continuing detention for the maximum period, ought to bear some reflection in the order of detention; or else, the Government could be accused of unreasonableness and unfairness. Detention being a restriction on the invaluable right to personal liberty of an individual and if the same were to be continued for the maximum period, it would be eminently just and desirable that such restriction on personal liberty, in the least, reflects an approach that meets the test of Article 14.
The detention order not upheld - As a consequence, the impugned judgment and order of the High Court too cannot be upheld. The Detention Order and the impugned judgment and order stand quashed. The appeal stands allowed.
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2024 (1) TMI 3
Dishonour of Cheque - acquittal of accused - accused failed to make the payment despite the receipt of the notice - presumption of consideration under Section 139 of the Negotiable Instruments Act - burden lies upon the accused to rebut the presumption - HELD THAT:- The complainant filed an application to prove the Income Tax Returns submitted by him. The return for the year 2009-2010 was submitted on 16.03.2010 as per the endorsement made on the acknowledgement. He had filed the complaint on 11.03.2010, hence, the Income Tax Return came into existence after filing of the complaint during its pendency - The application has been filed under Section 311 of Cr.P.C. however, the application is in the nature of additional evidence to prove the additional record mainly the Income Tax Return and will properly fall within the definition of Section 391 of Cr.P.C.
It was laid down by the Hon'ble Supreme Court in ASHOK TSHERING BHUTIA VERSUS STATE OF SIKKIM [2011 (2) TMI 1539 - SUPREME COURT] that the power to receive additional evidence must be exercised sparingly in those cases where the Court is satisfied that additional evidence would serve the interest of justice.
Since no plausible reason has been assigned for not producing the additional evidence before the learned Trial court; therefore, it is impermissible to lead the additional evidence in the appeal. Consequently, the present application fails and the same is dismissed.
The complainant did not examine these persons. Thus, the learned Trial Court had rightly doubted the financial capacity of the complainant and had rightly held that the presumption contained in Section 139 of the Negotiable Instrument Act was rebutted. This was a reasonable view taken by the learned Trial Court - the submission that the learned Trial Court had wrongly held that the presumption under Section 139 of the NI Act was rebutted is not acceptable.
The judgment passed by the learned Trial Court was a reasonable one and no interference is required with the same - the present appeal fails and the same is dismissed.
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2024 (1) TMI 2
Dishonour of Cheque - need of new evidence - evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case or not - HELD THAT:- The exercise of the widest discretionary power under Section 311 Code of Criminal Procedure should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated - The exercise of power under Section 311 Code of Criminal Procedure should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
The power under Section 311 Code of Criminal Procedure must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” - In present case, Trial Court, after going through statement Ex. DW-3/A and after taking into consideration evidence before it, including Ex.DW-3/A, and considering the rival contentions of the parties, concluded that it appeared to be just and important to allow the application for adjudication of the complaint and, therefore, after recording that though application was filed at a belated stage, in the interest of justice, allowed the application with further order to compensate the complainant with costs of ₹ 1,000/-.
The Trial Magistrate has not committed any irregularity, illegality or perversity in the impugned order, and, therefore, it is not a fit case to exercise jurisdiction under Section 482 Cr.P.C. - complainant-petitioner has failed to make out a case to rebut the satisfaction recorded by the Trial Magistrate with respect to necessity of allowing the application for just decision of the case.
The present petition is dismissed and disposed of.
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2024 (1) TMI 1
Dishonour of Cheque - acquitted of the charges - vicarious liability of Managing Director for the offence committed by the company - HELD THAT:- In the case on hand, the 1st accused-company owed amount to the complainant/1st respondent. Admittedly the revision petitioner was the Managing Director of that company and he issued that cheque in his capacity as its Managing Director. When the company is found not guilty of the offence alleged, the Managing Director cannot be held vicariously liable for the offence committed by the company. No appeal or revision has seen preferred by the complainant/1st respondent against the acquittal of the 1st accused-company. So, that verdict has become final. So much so, the revision petitioner Managing Director cannot be held liable as the company was acquitted, finding that no offence was committed by the company. The revision petitioner in his personal capacity did not owe any amount to the complainant/ 1st respondent and Ext.P2 cheque was issued not towards discharge of any personal liability of the revision petitioner.
The liability of persons referred to in Section 141 of the N.I Act is coextensive with that of the company, firm or association of individuals, in a prosecution under Section 138 of the N.I Act. When it is found that the company has not committed the offence, and it is acquitted, its directors are not liable to be convicted, for the offence for which the company has been acquitted.
The finding of the appellate court that, the revision petitioner/2nd accused has committed an offence punishable under Section 138 of the N.I Act in spite of acquittal of the 1st accused-company, is liable to be set aside - the impugned judgment is set aside and the revision petitioner is found not guilty of the offence punishable under Section 138 of the N.I Act and he is acquitted.
Revision petition allowed.
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2023 (12) TMI 1373
Challenge the appointment of Arbitrator on the part of the respondent Insurance Company - whether the dispute is arbitrable can be decided at the stage of section 11 of the Arbitration and Conciliation Act, 1996? - HELD THAT:- Reliance is placed on the decision of the Apex Court in the case of Magic Eye Developers Private Limited vs. Green Edge Infrastructure Private Limited and others, [2023 (5) TMI 510 - SUPREME COURT], where it was held that 'When the claim is disputed, it is the arbitrator who may competently decide the claim. Arbitrability of the dispute is also to be decided by the arbitrator. While exercising the powers under section 8 of the Arbitration and Conciliation Act, 1996, such questions cannot be gone into by this Court and when there is an arbitration clause, the aspects are to be decided by the arbitrator for such purpose.'
This Court does not find any reason to reconsider the contention of the respondent insurance company that the dispute is non-arbitrable inasmuch, as consent letter has been sent by the petitioner on 24.12.2018 and payment had been received in January, 2019 without any protest.
Petition allowed.
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2023 (12) TMI 1370
Suit for Declaration for declaring the plaintiff (respondent No.1 herein) as the Karta of Late Shri D.R. Gupta and Sons, HUF allowed - married daughter can be the Karta of a Hindu Undivided Family (HUF) or not - Whether the Hindu Succession Amendment Act, 2005 to Section 6 of the Act, 1956 is retrospective? - HELD THAT:- A “Joint Hindu Family” consists of male members descended lineally from a common male ancestor and included their unmarried daughters, wives, mothers and widows. A “coparcenary” is a narrower body which is a subset within a Joint Hindu Family where an interest in the property is created by birth. Though a joint family status is a result of birth, the possession of joint property is only an appendage and not prerequisite for the constitution of such a family as held in Haridas vs. Devaki Bai, 1926 SCC OnLine Bom 76. On the other hand, a “coparcenary” is created only when there is joint or coparcenary property.
Birth in the Joint Hindu Family, seniority by age and the status of being a Coparcener are the necessary qualifications to become a Karta. The traditional Law nowhere proscribed a female from being a manager but the requisite of being the “senior most male” was the necessary corollary of the fact that only male members of the Joint Hindu Family who were born within the degrees of coparcenary, were given the status of a Coparcener.
Whether recognition of a daughter as a Coparcener necessarily entitles her to be a Karta? - HELD THAT:- The concept of coparcenary is derived from the joint ownership of a common pool of assets held by a family and the necessary corollary was that who owns the property, would have a right to manage it. When under the traditional Hindu law, the woman was not entitled to coparcenary property; resultantly, she could not assume the position of Karta. However, the Amendment to Section 6 of the Act, 1956 redefines the meaning of coparcenary as understood under the traditional Hindu Law, which is no longer limited to devolution of interest in the coparcenary property alone but encompasses all other incidents of a Coparcener, including the right to be a Karta. To say that a woman can be a coparcener but not a Karta, would be giving an interpretation which would not only be anomalous but also against the stated Object of introduction of Amendment.
The appellant claims that the learned Single Judge failed to appreciate a significant aspect that performance of spiritual and managerial duties is by the Karta of the HUF which respondent No. 1 being a female, cannot perform. Thus, it has to be accepted that only the appellant, being the eldest male coparcener, is eligible to become the Karta of the “D.R. Gupta & Sons HUF” - This argument raises a fundamental question of the necessary competency of the woman to perform the religious and familial obligations of a Karta in the backdrop of Mitakshara Law.
Spiritual efficacy of a female Coparcener - HELD THAT:- The spiritual efficiency is an indispensable requirement under the Dayabhaga Law; however, the same cannot be presumed under Mitakshara law. It is amply clear from the above that the spiritual duties performed by a Karta of an HUF governed by Mitakshara law was only coincidental to the fact that only male descendants were entitled to become coparceners in the past. Thus, with the amendment in law conferring daughters with coparcenary rights, spiritual efficiency or the ability to perform certain rituals cannot become a prerequisite qualification for becoming a Karta of an HUF governed by Mitakshara law - Spiritual efficiency comes under consideration only when the question of preference arises. In the present case, the question of preference is obviated by the overt seniority by age of respondent No.1 in comparison to the appellant.
Non-Participation in the Affairs of the Family after Marriage - HELD THAT:- Being a Karta is conferment of legal status which includes right to manage the HUF properties and even if the appellant represented himself as Karta in official correspondence on behalf of HUF to manage the property, it does not take away the legal right of the eldest member of the Coparcener of the family, even if she is a woman, to stake a claim to be a Karta.
The right of the daughter of a Coparcener to enjoy the status of a Coparcener from the commencement of the Hindu Succession (Amendment) Act, 2005 cannot hinge upon the life span of her father. Such a distinction can certainly not sustain the test of intelligible differentia that was sought to be addressed through the Amendment.
Thus, in the present case, it is established there was no continuation of “D.R. Gupta & Sons HUF” after the demise of Shri D. R. Gupta in the year 1977 and the property got mutated in the name of all the legal heirs. In furtherance of such severance of status, the also parties determined the shares of each of the branch of the five brothers to be 1/5th as mentioned in the Memorandum of Settlement. Thus, even though no partition by metes and bounds took effect between the parties, a partition took place leading to severance of status of the undivided family into a divided family.
The respondent No. 1 is hereby declared as the Karta for the purposes of representing the “D.R. Gupta & Sons HUF” before the Competent Authority. Deficient Court fee be paid - there are no merit in the present appeal which is hereby dismissed.
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2023 (12) TMI 1366
Seeking grant of regular bail - illegal trade in psychotropic substances - Contraband item - inadmissible statements - no reasons to believe were recorded in writing - violation of Section 42 of the NDPS Act - HELD THAT:- Section 52-A of the NDPS Act prescribes that upon seizure of psychotropic substances, the officer shall approach the Magistrate, under whose presence and supervision the process of sampling will be conducted and certified to be correct. Though the application under Section 52-A of the NDPS Act has to be made without undue delay, no time limit for the same has been prescribed.
A Co-ordinate Bench of this Court in Arvind Yadav v. Govt. (NCT of Delhi) [2021 (7) TMI 1422 - DELHI HIGH COURT], refused the grant of bail in a case involving commercial quantity of cocaine despite the sampling not being carried out in the presence of a Magistrate.
Recently a Co-ordinate Bench of this Court in SURENDER KUMAR VERSUS CENTRAL BUREAU OF NARCOTICS (CBN) [2023 (8) TMI 1548 - DELHI HIGH COURT] has observed that Section 52-A of the NDPS Act is directory in nature and non-compliance of the same, in itself, cannot render the investigation invalid. Accordingly, the bail application of an accused charged of illegally selling narcotic medicines was dismissed by taking into account that the case involved commercial quantity of such medicines.
There is no mandatory time duration prescribed for compliance of Section 52-A of the NDPS Act. Though it is desirable that the procedure contemplated in Section 52-A of the NDPS Act be complied with at the earliest, mere delayed compliance of the same cannot be a ground for grant of bail. The applicant will have to show the prejudice caused on account of delayed compliance of Section 52-A of the NDPS Act - In the present case, the sampling of the seized psychotropic substances was carried out in the presence of the Magistrate and the accused persons and the samples were directed to be sent for testing. The applicant has failed to show the prejudice caused to him on account of the delayed compliance of Section 52-A of the NDPS Act.
Considering the facts and circumstances including the fact that commercial quantities of psychotropic substances have been recovered at the instance of the applicant, it is not possible to form a prima facie view at this stage, that the applicant is not guilty of the offences or that he would not commit similar offences if released on bail. Therefore, the twin conditions of Section 37 of the NDPS Act are not satisfied and bail cannot be granted to the applicant at this stage.
The present application is dismissed.
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2023 (12) TMI 1361
Violation of Human Rights - allegations of sexual harassment - Direction to Petitioner to supply information to the Respondents holding that the information sought by the Respondents does not fall under the exemption provided in the proviso to Section 24 of the Right to Information Act, 2005 - HELD THAT:- Considering the fact that the information requested is only about recruitment rules, thus bearing in mind the various judicial precedents, including the decision of this Court in titled Bimal Kumar Bhattacharya [2018 (3) TMI 1251 - DELHI HIGH COURT] as also the recent order of the Hon'ble Supreme Court in this Court is of the view that this is not a case which would involve any human rights violation and is accordingly not exempted by the proviso to Section 24 of the RTI Act, 2005.
The ED is exempted under section 24 of the RTI Act, 2005 from disclosing the said information. Accordingly, the impugned order dated 27th November, 2019 passed by the CIC is set aside.
In this case, the non-disclosure of information of allegations of sexual harassment, in the opinion of this Court, would fall clearly within the conspectus of human rights violations, as exempted by the proviso to Section 24 of the RTI Act, 2005. In view thereof, the ED is directed to disclose the information sought by the RTI Applicant/Respondent within eight weeks.
Petition disposed off.
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2023 (12) TMI 1360
Dishonour of Cheque - challenge to judgement of conviction and sentence - non-compliance with the conditions to deposit 20% of the compensation amount - Application for suspension of sentence and stay of proceedings based on insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The fundamental facts in this petition is that the application by the petitioners herein are debtors application under section 94 of the Code. It was filed, after they were found guilty for offence under section 138//141 of NI Act. The Hon'ble Supreme Court in Mohanraj case [2021 (3) TMI 94 - SUPREME COURT] had unequivocally held that the proceedings under section 138/141 of NI Act will fall under the scope of moratorium referred in IBC subject to the exceptions mentioned in the Code.
The judgement of Mohanraj case [2021 (3) TMI 94 - SUPREME COURT] is in respect of corporate debtor, which filed application under section 9 of the IBC. In the said judgment, the Hon'ble Supreme Court has held that the proceedings initiated under section 138 of NI Act falls within the scope of Section 14(1)(a) of the Code. In that judgment, at paragraph 102, the Hon'ble Supreme Court has made it clear that interim moratorium in a corporate debtor's application will not extend to the natural persons, who are prosecuted under section 138/141 of NI Act. Section 14 of IBC will apply only to the corporate debtor, the natural persons mentioned in Section 141 of NI Act continue to be statutorily liable.
The Directors as Signatory or Guarantor or Person responsible for the affairs of the company, which has issued cheque to discharge its liability, can not have the advantage of their application to declare them as insolvent as an individual to seek moratorium. If such plea is entertained, then as observed by the Hon'ble Supreme Court, it will lead to absurdity. To demonstrate, for instance, in this case, if the interim moratorium under section 96 is extended to these petitioners, who are the representatives of the company, which is not a corporate debtor facing resolution process under the Code, then the first accused company will stand without a natural person to represent. Being a proceedings with penal action, there can be no substitution for the petitioners as the Directors of the first accused company.
As the Hon'ble Supreme Court held that the moratorium given to the corporate debtor under Chapter II will not cover the individuals, who are the Guarantors of Directors. Similarly, the moratorium given to an individual under Chapter III will not cover the proceedings initiated against them as Directors or Guarantors of any company, which is not a corporate debtor under this Code.
This Criminal Original Petition is dismissed.
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2023 (12) TMI 1358
Dishonour of Cheque - Challenge to the decree for money granted in the suit which was predicated on a dishonoured cheque - defendant resisted the suit contending that he never borrowed any money from the plaintiff - presumption u/s 118 of NI Act - HELD THAT:- No doubt, a strong presumption arises by the force of Section 118, ibid. in a case where the suit is filed based on a negotiable instrument. But, such a presumption is rebuttable. While considering the question as to how such a presumption can be rebutted, the Supreme Court in, BHARAT BARREL & DRUM MANUFACTURING COMPANY VERSUS AMIN CHAND PAYRELAL [1999 (2) TMI 627 - SUPREME COURT] has observed 'Once the defendant showed either by direct evidence or circumstantial evidence or by use of the other presumptions of law or fact that the promissory note was not supported by consideration in the manner stated therein, the evidentiary burden would shift to the plaintiff and the legal burden reviving his legal burden to prove that the promissory note was supported by consideration and at that stage, the presumption of law covered by Section 118 of the Act would disappear.'
The plaintiff has admitted that he has not produced any document to show the lending; he has not produced any document to show that he was in possession of a sum of Rs. 23 lakhs on 04.11.2012, the date of alleged lending; he has not produced any document to show that he was carrying on some business fetching him income on the relevant date; he has admitted that he had no bank account; he has also admitted that he is not an Income Tax assessee. His claim that his mother lent him a sum of Rs. 15 lakhs, has been proved to be false by his own document, viz., Ex.A.12, sale deed, which shows that his mother had sold the property six years ago for a paltry sum of Rs. 4 lakhs.
A reading of the cross-examination of P.W.1 would show that not even a single utterance of him in his proof affidavit and the plaint is true. Undoubtedly, the conduct of the defendant in not lodging a police complaint and not sending a reply to the legal notice militates against him. But, the presumption that is drawn from the silence on the part of the defendant cannot undo the damage done by the plaintiff in his own cross-examination as P.W.1. The evidence in cross-examination of P.W.1 leads us to firmly believe that the presumption under Section 118, ibid., stood rebutted by the force of such evidence of P.W.1 himself.
It is not required to agree with the Trial Court in granting a decree for payment of money - the judgment and decree of the Trial Court are set aside - appeal allowed.
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2023 (12) TMI 1357
Seeking grant of regular bail - application under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) read with Section 36A(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) - right to be searched in the presence of a Gazetted Officer or a Magistrate - non-compliance of Section 50 of the NDPS Act.
HELD THAT:- The contention of learned APP for the State that the question of being search in the presence of the ‘nearest’ Gazetted Officer or Magistrate would arise only if the accused had exercised his option in terms of Section 50 of the NDPS Act, is not tenable.
The right of the accused, as contained in Section 50 of the NDPS Act is mandatory in nature and the same has been emphasized time and again in the various judicial precedents. The co-ordinate bench of this Court, in MOHD. JABIR VERSUS STATE OF NCT OF DELHI [2023 (3) TMI 1529 - DELHI HIGH COURT], has taken note that the word ‘nearest’ has been used in the statute with a certain intention.
The relevance of a notice under Section 50 of the NDPS Act and its mandatory compliance was clearly spelt out by the Hon’ble Supreme Court in State of Punjab v. Balbir Singh [1994 (3) TMI 173 - SUPREME COURT], wherein it was held that 'When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of Section 50 are mandatory.'.
A perusal of the notice reflects that the word ‘nearest’ does not find any mention as stated hereinabove. The said word is in the language of the section itself. The raiding officer in the present case ought to have given the said option to the applicant. This Court is in agreement that the judgment of co-ordinate bench in Mohd. Jabir to the effect that the word ‘nearest’ has been used in the statute with a certain intention and cannot be ignored by the concerned Investigating Officer at the time of giving notice under Section 50 of the NDPS Act.
As per nominal roll dated 10.05.2023, the applicant has been in judicial custody for 01 year 05 months and 28 days. The investigation in the present case is complete, the chargesheet stands filed and the trial is underway. No useful purpose will be served by keeping the applicant in judicial custody any further.
The applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 50,000/- alongwith two sureties of like amount to the satisfaction of the learned Trial Court/Link Court, further subject to fulfilment of conditions imposed - the present application is allowed.
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2023 (12) TMI 1352
Service of notice - HELD THAT:- Court notice be issued to the standing/nominated counsel for the State, who will obtain instructions and enter appearance - In case deposit in terms of interim order dated 16.01.2023 is not made, the respondents/authorities will proceed to enforce and execute the impugned judgment.
The Haryana State Pollution Control Board and the concerned authorities for the State of Haryana will carry out site inspection and ensure that no mining activities are being carried. Photographs of the site can be taken and filed. If required, satellite images will also be filed.
Re-list in the month of February 2024.
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2023 (12) TMI 1342
Exclusion of the period of 1854 days in computing the period of limitation for filing the Petition challenging the Award - defect of jurisdiction - Section 14 of the Limitation Act - HELD THAT:- The Applicant in the present case has failed to exercise due diligence and good faith. Further, the proceedings adopted by the Applicant viz. the Writ proceedings cannot be said to be proceeding suffering from “defect of Jurisdiction” or “any other causes of like nature”. It is not the submission of the Applicant/Petitioner that the Writ Court cannot interfere with the Arbitral Award. In the present case, the Writ Court chose not to interfere on account of alternate remedy.
In the decision of the Supreme Court in Zafar Khan [1984 (7) TMI 404 - SUPREME COURT] “Defect of Jurisdiction” has been construed as well as “other cause of like nature” and explanation (c) to Section 14 has also been referred to which provides misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction. This expression must take its colour and content from the just preceding expression, “defect of jurisdiction”. In the present case, the Writ Petition challenging the Award cannot be termed as “defect of jurisdiction”.
There are much merit in the submission of the Counsel of Respondent No.1 that presuming Section 14 applies to the Arbitration Petition, the Arbitration Petition is not preferred within the prescribed period of limitation as the delay is of 166 days as the period between receipt of the Award and filing of the Writ Petition as well as the period between the rejection of the Writ Petition and filing of the SLP and the period between the dismissal of SLP and filing of the Arbitration Petition cannot be counted in the exclusion period under Section 14 of the Limitation Act. Thus, in any event the Arbitration Petition has been preferred beyond the permissible period of 120 days under Section 34 of the Arbitration Act.
There are no merit in the present Interim Application for exclusion of the period of 1854 days from 5 th April, 2017 till 1st November, 2022 in computing the period of limitation for filing the Petition challenging the Award dated 31st March, 2017 passed by the Facilitation Council constituted under the MSME Act. The delay beyond the permissible period of 120 days under Section 34(3) and proviso thereto of the Arbitration Act can in no event be condoned.
The Commercial Arbitration Petition under Section 34 of the Arbitration Act is dismissed as being barred by Limitation and is accordingly disposed of.
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2023 (12) TMI 1335
Scope of jurisdiction exercised by this Court under Section 37(2)(b) of the Arbitration Act - true purport and nature of the Term Sheet, based upon interpretation of its various clauses - HELD THAT:- Section 37 of the Arbitration Act, pertains to appealable orders and it provides for filing of an appeal before the Court, inter alia, to challenge an order granting or refusing interim measure under Section 17 of the Arbitration Act. In the very same provision under Section 37 (1)(c) of the Arbitration Act, an appeal can be filed against an order setting aside or refusing to set aside an arbitral award under Section 34 of the Arbitration Act.
So long as the learned Arbitrator has considered the relevant material and a plausible view has been adopted in the facts and circumstances of the case, this Court would be loathe to interfere with the order passed by the learned Arbitrator. This Court would not interfere with the order of the learned Arbitrator passed under Section 17 of the Arbitration Act, merely because another view is possible in the matter. The discretion exercised by the learned Arbitrator, based upon a plausible view and upon taking into consideration all relevant material, cannot be lightly interfered with by this Court exercising jurisdiction under Section 37(2)(b) of the Arbitration Act - This Court intends to consider the impugned order passed by the learned Arbitrator in this backdrop and based upon the material available on record, in the light of the rival submissions made on behalf of the parties.
The findings rendered by the learned Arbitrator that the Term Sheet was prima facie an agreement to enter into an agreement, was not even a plausible view. This Court finds that the learned Arbitrator took into consideration all the relevant material, including the clauses of the Term Sheet in detail, while rendering findings on the said aspect of the matter, which cannot be termed as wholly implausible. Therefore, on the said aspect of the matter, no ground is made out on behalf of the petitioner for holding that the finding rendered by the learned Arbitrator could be said to be perverse or illegal, to warrant exercise jurisdiction under Section 37 (2)(b) of the Arbitration Act.
Applying the law pertaining to the scope of jurisdiction while considering the present petition filed under Section 37(2)(b) of the Arbitration Act, akin to considering an Appeal from Order, this Court does not find any ground for interference with the impugned order and hence, the present petition deserves to be dismissed.
Petition dismissed.
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2023 (12) TMI 1323
Dishonour of Cheque - non-speaking order - requirement of speaking order to impose a condition to deposit the amount as per Section 148 of the Negotiable Instruments Act - HELD THAT:- In JJAMBOO BHANDARI VERSUS M.P. STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD. AND ORS. [2023 (9) TMI 560 - SUPREME COURT] the Apex Court considered the powers of the appellate court under Section 148 of the Negotiable Instruments Act, and held that 'When an accused applies under S.389 of the CrPC for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not.'
In the light of the above principle laid by the Apex Court, it is the duty of the Appellate court to give reason for imposing the condition to deposit 20% of compensation for suspending the sentence. There cannot be any blanket order to deposit 20% of the compensation for suspending the sentence in all cases.
When a blanket order is sought by the appellants, the Court has to consider whether the case falls within the exception or not. The appellate court while suspending a sentence cannot pass a blanket order in all cases to deposit 20% of the fine or compensation without assigning any reason. Moreover, once the court has decided to order deposit as per Section 148(1) of the Negotiable Instruments Act, the amount of deposit ordered by the Court can be varied from the minimum 20% of the fine or compensation to a higher percent of the fine or compensation. That also shows that a speaking order is necessary. Even if the court is imposing 20% of the fine or compensation as a condition for suspending the sentence, in the light of the principle laid down by the Apex Court in Jamboo Bhandari's case (supra), a reason is necessary.
Thus, the Sessions court has not applied its mind before imposing 20% of the compensation amount. In the light of the dictum laid down by the Apex Court in Jamboo Bhandari's case, the above order is unsustainable. Moreover, there is no order requiring the appellant to execute a bond for suspending the sentence. This court called for the remarks of the appellate court for not directing the appellant to execute bond.
The direction to deposit 20% of the compensation amount before the trial court as per order dated 24.06.2023 in CMP No. 44/2023 in Crl.Appeal No. 109/2023 on the file of the Additional District & Sessions Judge, Pala is set aside - criminal case allowed.
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2023 (12) TMI 1236
Recovery of dues - priority over charges - whether the different departments of the State including Excise and Revenue will have priority over the secured creditors’ debt? - HELD THAT:- It would be evident from the replies filed by the respondents that they have nowhere disputed the lien of the State Bank of India as per Section 26 D noted and entered in the CERSAI (Annexure P-2), dated 06.03.2013, which clearly establishes the fact that the petitioner-Bank is not only a secured creditor but has created the first charge over the property in question as far as back in the year, 2013. Whereas the charge of respondents No. 1 and 2 had been created and reflected in revenue record vide rapat No. 459, dated 09.07.2015 and that of respondent No. 3 only vide Rapat No. 173, dated 05.02.2018.
Once the petitioner is a secured creditor and has moreover created the first charge over the property, then obviously, it has the first right to realise its dues and this question is no longer res integra in view of the authoritative pronouncement of the Hon'ble Supreme Court in Punjab National Bank Vs. Union of India & Ors. [2022 (2) TMI 1171 - SUPREME COURT].
The legal position has thereafter been reiterated in a recent judgment of this Court in Mankind Life Sciences Private Limited vs. The State of Himachal Pradesh & Anr., [2023 (10) TMI 867 - HIMACHAL PRADESH HIGH COURT], wherein it was held [2022 (2) TMI 1171 - SUPREME COURT].
This Court is left with no other option, but to allow the instant petition by directing respondents to remove the red entry qua the property in question made in the revenue record i.e. Rapat No. 459, dated 09.07.2015 and Rapat No. 173, dated 05.02.2018 forthwith.
The instant petition is allowed.
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2023 (12) TMI 1235
Dishonour of Cheque - rebuttal of presumption - main reason asserted both for dislodging execution of Ext.P1 and lack of consideration is that the similarity of handwriting in it with that in Ext.X1. PW1 has no case that Ext.P1 was in the handwriting of the petitioner - HELD THAT:- The petitioner did not adduce any evidence. It is true that in order to rebut the presumption in respect of a cheque, the accused can rely on the evidence and materials submitted by the complainant. The only thing is that the accused must be able to substantiate his case by preponderance of probabilities. The case set up by the petitioner during the cross-examination of PWs.1 to 3 and also in his answers to the question put to him under Section 313(1)(b) of the Code is that the cheque was issued as a security in respect of the transactions between himself and the 1st respondent - Lack of signature of PW1 in two pages of Ext.P6 does not assume much importance since its execution is proved by the evidence of PW3 and it is in favour of the 1st respondent. It was after considering the aforesaid evidence in detail the courts below concurrently held that the petitioner failed to rebut the presumption available under Section 139 of the N.I. Act in respect of Ext.P1.
The power of revision under Section 401 of the Code is not wide and exhaustive. The High Court in the exercise of the powers of revision cannot re-appreciate evidence to come to a different conclusion, but its consideration of the evidence is confined to find out the legality, regularity and propriety of the order impugned before it. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the concurrent findings by the courts below while exercising revisional jurisdiction.
This Court is not expected to substitute the concurrent finding of the court below with a different view unless such findings are perverse and against the evidence - the revision lacks merits and liable to be dismissed - the revision petition is dismissed.
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2023 (12) TMI 1203
Dishonour of Cheque - restoration of complaint - whether the negligence either on the part of the petitioner or his counsel in prosecution of the complaint can be a ground for not restoring the complaint? - HELD THAT:- The present complaint pertains to cheques total amounting to Rs.89,00,000/- which were dishonoured due to insufficient funds. There is no dispute by the respondent regarding the fact that the said cheques were signed and issued by him and also regarding the dishonour of the cheques on the ground 'Funds Insufficient'. The petitioner is stated to be a qualified doctor. The petitioner was under the impression that he would be adequately represented by his previous counsel. The various orders passed by the trial court are reflecting that the petitioner and his counsel were not diligent in the prosecution of the complaint. However, mere negligence either on the part of the petitioner or his counsel in prosecution of the complaint should not be a ground for not restoring the complaint. The petitioner cannot be allowed to be suffer due to the negligence of his previous counsel.
The impugned order dated 07.12.2016 passed by the trial court is set aside - the complaint is ordered to be restored to its original number before the trial court subject to the cost of Rs.25,000/- to be paid by the petitioner to the respondent on the next date of hearing before the trial court.
The petitioner and the respondent are directed to appear in person before the trial court on 15.01.2024 at 2:30 p.m. for further directions.
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