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Indian Laws - Case Laws
Showing 61 to 80 of 26744 Records
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2024 (10) TMI 1394
Medical negligence of the doctor - deterioration of patient's condition due to neglugence of Doctor or otherwise? - HELD THAT:- A medical professional may be held liable for negligence only when he is not possessed with the requisite qualification or skill or when he fails to exercise reasonable skill which he possesses in giving the treatment. None of the above two essential conditions for establishing negligence stand satisfied in the case at hand as no evidence was brought on record to prove that Dr. Neeraj Sud had not exercised due diligence, care or skill which he possessed in operating the patient and giving treatment to him.
In Jacob Mathews [2005 (8) TMI 621 - SUPREME COURT] this Court held that a professional may be held liable for negligence if he is not possessed of the requisite skill which he supposes to have or has failed to exercise the same with reasonable competence. The complainant has not adduced any evidence to establish that Dr. Neeraj Sud or the PGI were guilty of not exercising the expertise or the skill possessed by them, so as to hold them liable for negligence. No evidence was produced of any expert body in the medical field to prove that requisite skill possessed by Dr. Neeraj Sood was not exercised by him in discharge of his duties.
Simply for the reason that the patient has not responded favourably to the surgery or the treatment administered by a doctor or that the surgery has failed, the doctor cannot be held liable for medical negligence straightway by applying the doctrine of Res Ipsa Loquitor unless it is established by evidence that the doctor failed to exercise the due skill possessed by him in discharging of his duties.
The NCDRC ought not to have interfered with the findings and the impugned judgment and order of the State Commission so as to hold the doctor of the PGI negligent and to award compensation - the judgment and order dated 24.08.2011 of the NCDRC is hereby set aside and that of the State Commission is restored. Since the complainants have failed to prove any negligence on part of the doctor or the PGI, they are not entitled to any compensation as such, no question arises for its enhancement.
Appeal disposed off.
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2024 (10) TMI 1393
Extension of time for making and passing/publishing of the Award under Section 29A of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The period during which the interim order passed by this Court was in operation, will be excluded for the purpose of computation of the period for making and passing/publishing of the Award under Section 29A of the Arbitration and Conciliation Act, 1996.
Applications disposed off.
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2024 (10) TMI 1330
Conviction for the offences punishable under Section 120B read with Sections 420/419 of the Indian Penal Code (IPC) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 - substantive sentence of 7 years - embezzlement - HELD THAT:- The power of suspension of sentence under Section 389 of the CrPC (Corresponding to Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is vested in the Appellate Court dealing with an appeal against the order of conviction. On a plain reading of subsection (1), the Appellate Court has the power to suspend the execution of a sentence or order appealed against. If the appellant/accused is in confinement, there is a power vesting in the Appellate Court to release him on bail pending the final disposal of the appeal. In case of offences covered by the first proviso to subsection (1) of Section 389, there is a mandate to give an opportunity to the Public Prosecutor to show cause in writing against such release before releasing a convicted person on bail. As stated earlier, the substantive sentence imposed on the respondent is rigorous imprisonment for seven years. In addition, there is a direction to pay a fine of Rs.95,00,000/-.
Perusal of the impugned order shows that the High Court was conscious of the fact that as the embezzlement alleged against the respondent and other accused persons was to the tune of Rs.46,00,000/, the Special Court had sentenced the respondent to pay a fine of Rs.95,00,000/. The order notes that the sentence imposed on the respondent was of both imprisonment and payment of fine. Therefore, on a plain reading of the impugned order, the argument of learned ASG that the sentence of the fine was not suspended cannot be accepted.
There is no reason to interfere with the impugned order, especially when the respondent has deposited a sum of Rs.15,00,000/in this Court. The deposit of Rs.15,00,000/shall be treated as a condition for suspending the sentence of fine. Accordingly, the appeal is disposed of with the above modification. The amount of Rs.15,00,000/deposited by the respondent has been invested by the Registry in fixed deposit. Immediately after maturity of the existing fixed deposit, the Registry shall transfer the amount of Rs.15,00,000/with interest accrued thereon to the Delhi High Court.
Appeal disposed off.
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2024 (10) TMI 1329
Suit for declaration of title over the suit property - recovery of possession - whether the registered gift deed dated 05.03.1983 was duly acted upon and accepted and is a valid document which continue to exist despite its revocation on 17.08.1987 as the donor had not reserved the right to revoke the same? - HELD THAT:- Admittedly, the present suit for declaration and recovery of possession of the suit property was filed by the plaintiffrespondent on 25.09.1991. The court of first instance held that as the same was not filed within three years from the date of revocation of the gift deed, i.e., 17.08.1987 (Exhibit B-2), the suit is barred by limitation - Once it is held that the gift deed was validly executed resulting in the absolute transfer of title in favour of the plaintiff-respondent, the same is not liable to be revoked, and as such the revocation deed is meaningless especially for the purposes of calculating the period of limitation for instituting the suit.
In the case at hand, the suit is not simply for the declaration of title rather it is for a further relief for recovery of possession. It is to be noted that when in a suit for declaration of title, a further relief is claimed in addition to mere declaration, the relief of declaration would only be an ancillary one and for the purposes of limitation, it would be governed by the relief that has been additionally claimed. The further relief claimed in the suit is for recovery of possession based upon title and as such its limitation would be 12 years in terms of Article 65 of the Schedule to the Limitation Act.
Though the limitation for filing a suit for declaration of title is three years as per Article 58 of the Schedule to the Limitation Act but for recovery of possession based upon title, the limitation is 12 years from the date the possession of the defendant becomes adverse in terms of Article 65 of the Schedule to the Limitation Act. Therefore, suit for the relief of possession was not actually barred and as such the court of first instance could not have dismissed the entire suit as barred by time.
There are no error or illegality on part of the first appellate court and the High Court in decreeing the suit of the plaintiff-respondent - appeal dismissed.
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2024 (10) TMI 1123
Overriding effect of Public Premises Act, 1971 over the Arbitration and Conciliation Act, 1996 - error or not in appointing the arbitrator while exercising the jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996.
Whether the Public Premises Act, 1971 overrides the Arbitration and Conciliation Act, 1996? - HELD THAT:- The dispute that is raised in the Section 11 application relate to promises and reciprocal promises arising out of the agreement dated 26.09.2012. The right of renewal as well as the legality and propriety of the enhanced demand arose during the subsistence of the agreement. It will be on the interpretation, construction and the obligations arising out of the agreement that the respondent’s claim rests - The original lease as it were, validly subsisted till 11.09.2015 and the dispute between the parties related to the period commencing from 12.09.2012 to 11.09.2015, when the lease expired. The Public Premises Act would not even cast a shadow on this period. In so far as the dispute relating to this right of renewal is concerned, it depends on the terms of the agreement. The Public Premises Act neither bars nor overlaps with the scope and ambit of proceedings that were initiated under the Arbitration and Conciliation Act.
Whether the High Court committed any error in appointing the arbitrator while exercising the jurisdiction under Section 11? - HELD THAT:- The revision of storage charges occurred during the subsistence of the contract. Its legality and propriety will depend on the terms of the agreement dated 26.09.2012. Similarly, the right of renewal will also be based on and a construct of the said agreement. These two disputes will undoubtedly arise out of the agreement between the parties and the resolution of such disputes is clearly covered by the arbitration clause.
There are no hesitation in rejecting the petition and it is further held that the appellant must bear the costs for this unnecessary litigation which is quantified at Rs. 50,000/- - appeal dismissed.
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2024 (10) TMI 1122
Reinstatement of employees and paymnet of compensation in lieu of back wages - employee falls under the definition of “workman” as given in section 2(s) of the Industrial Disputes Act, 1947 or not - HELD THAT:- It is pertinent to point out that the Industrial Disputes Act, 1947, was enacted by the legislature to settle the industrial disputes. It was brought with the object to ensure social justice to both the employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between the parties.
As per Section 2(s) of the I.D. Act, a person to be qualified as a “workman” has to do any work of manual, unskilled, skilled, technical, operational, clerical or supervisory in nature. But, the latter part of the section excludes four classes of employees including a person employed in a supervisory capacity drawing wages exceeding Rs.10,000/- after amendment (Rs.1,600/- before amendment) per month or exercises functions mainly of a managerial nature. In this legal backdrop, let us first examine, whether the employee falls within the definition of “workman”.
During the course of examination, the employee deposed as W.W.1 that he was not an executive cadre employee and there were senior officers to supervise and control his work. But, in the cross-examination, he asserted that he was supervising the work of two juniors who were working under him. According to M.W.1- Senior Manager of the management, the employee was an executive of the management and the management appointed two Junior Engineers and their works were being supervised by the said employee
The law is well settled that the determinative factor for “workman” covered under section 2(s) of the I.D. Act, is the principal duties and functions performed by an employee in the establishment and not merely the designation of his post. Further, the onus of proving the nature of employment rests on the person claiming to be a “workman” within the definition of section 2(s) of the I.D. Act.
In the present case, there is no specific document adduced relating to the actual work and functions performed by the employee. In the absence of any concrete material to demonstrate the nature of duties discharged by the employee, the employment orders issued by the management will have to be taken into consideration and as per the same, the employee was appointed as Junior Engineer and was promoted as Assistant Engineer, on the administrative side - the employee is not a “workman” as defined under section 2(s) and is not covered by the provisions of the I.D. Act. In view of the same, the order of the High Court upholding the finding of the Labour Court that the employee was a “workman” within the definition of post-amended section 2(s), is liable to be set aside.
Grant of reinstatement of the employee in service and payment of compensation in lieu of back wages by the Labour Court - HELD THAT:- There is no violation of procedure on the part of the management in terminating the services of the employee. The employee is not a “workman” as covered under section 2(s) and hence, the provisions of the I.D. Act do not apply to him. Resultantly, the contention of the learned senior counsel for the employee qua violation of section 25F coupled with sections 25G and 25H of the I.D. Act, ordering reinstatement with full back wages as normal rule, etc., cannot be countenanced. Though it is agreed with the principles laid down in the citations relied on by the learned counsel for the employee, they do not come to rescue the employee as the facts of the same are distinguishable. Thus, there are no infirmity or illegality in the order of the High Court setting aside the award of the Labour Court which directed reinstatement of the employee along with payment of compensation in lieu of back wages and hence, the same does not call for any interference.
The order of the High Court confirming the finding of the Labour Court to the extent that the employee was a “workman” within the meaning of section 2(s) of the I.D. Act set aside - insofar as setting aside the award of the Labour Court to reinstate the employee in service and pay compensation of Rs.75,000/- in lieu of back wages, is affirmed - the Appeal filed by the employee stands dismissed and the Appeal filed by the management stands allowed.
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2024 (10) TMI 1121
Dishonour of Cheque - presumption regarding the consideration - failure to rebut the presumption by providing satisfactory evidence - HELD THAT:- It was laid down by the Hon’ble Supreme Court in MALKEET SINGH GILL VERSUS THE STATE OF CHHATTISGARH [2022 (7) TMI 1455 - SUPREME COURT] that the revisional court is not an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law.
The accused has not disputed the taking of the loan, the issuance of the cheque and his signatures on the cheque. It was laid down by this Court in NARESH VERMA VERSUS NARENDER CHAUHAN [2019 (10) TMI 1578 - HIMACHAL PRADESH HIGH COURT] that where the accused had not disputed his signatures on the cheque, the Court has to presume that it was issued in discharge of legal liability and the burden would shift upon the accused to rebut the presumption.
In the present case, the accused did not lead any evidence to rebut the presumption. His plea that he had deposited the amount will not help him because the amount was not proved to have been deposited towards the present loan transaction. Thus, the learned Courts below had rightly held that the cheque was issued in discharge of the legal liability.
The accused failed to pay the amount even within 15 days of the receipt of the summons from the Court. It was laid down in CC. ALAVI HAJI VERSUS PALAPETTY MUHAMMED [2007 (5) TMI 335 - SUPREME COURT] that the person who claims that he had not received the notice has to pay the amount within 15 days from the date of the receipt of the summons from the Court and in case of failure to do so, he cannot take the advantage of the fact that notice was not received by him.
The accused had issued a cheque of ₹ 70,000/- on 18.02.2019. Learned Trial Court imposed the sentence on 14.10.2022 after the lapse of more than three years. The complainant had to incur the legal expenses and he had to engage a counsel for that. He also suffered a loss of interest and was entitled to be compensated for the same. It was laid down by the Hon’ble Supreme Court in M/S. KALAMANI TEX & ANR VERSUS P. BALASUBRAMANIAN [2021 (2) TMI 505 - SUPREME COURT] that the Courts should uniformly levy a fine up to twice the cheque amount along with simple interest at the rate of 9% per annum - Hence, the amount of ₹ 1,00,000/- as compensation cannot be said to be excessive and no interference is required with the sentence imposed by the learned Trial Court.
The present revision fails and same be dismissed.
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2024 (10) TMI 974
Setting aside of auction sale - grant of adequate compensation to the appellant - submission of the learned counsel appearing for the appellant is that solatium at 5 per cent of the amount deposited by the appellant granted to the appellant is inadequate - HELD THAT:- The High Court set aside the auction sale not based on the provisions of the said Rules or on the ground that the auction was illegal. The High Court set aside the auction on equitable considerations, as the entire amount due and payable to the 4th respondent bank, including interest, was deposited by the 1st and 2nd respondents with the High Court within three months from filing the Writ Petition.
There is no doubt that the appellant must be compensated as he was deprived of using the amount of Rs.81,20,000/- from 21st July 2019 till the date of actual refund due to no fault on his part. As stated earlier, the amount was transferred by the 3rd respondent to the 4th respondent on 13th October 2022.
The appellant was entitled to receive interest on the said amount of Rs.81,20,000/- at the rate of 6 per cent per annum from the date of deposit of the said amount till the date of refund. It is an admitted position that the 3rd respondent conducted the auction of the property claimed by the 1st and 2nd respondents at the instance of the 4th respondent. Admittedly, the 4th respondent bank has not challenged the impugned orders and has thus accepted the finding that the appellant must be compensated. Therefore, the 4th respondent bank will be liable to pay interest to the appellant. The fact that the amount was lying deposited with the 3rd respondent is irrelevant as the auction was at the instance of the 4th respondent.
The impugned judgments dated 5th September 2022 and 17th March 2022 are hereby modified by setting aside direction to pay an amount equivalent to 5 per cent of Rs.81,20,000/- to the appellant - the 4th respondent is directed to pay simple interest at the rate of 6 per cent per annum on the sum of Rs. 81,20,000/- to the appellant from 21st July 2019 till the date of the actual refund of the amount of Rs. 81,20,000/- to the appellant - appeal allowed in part.
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2024 (10) TMI 973
Levy of of tax/fee/royalty on advertisement(s) - demand made without any legislative sanction and is, thus, violative of Article 265 of the Constitution of India, 1950 - whether the demand is by way of a tax/levy or simply in the nature of royalty for permission for advertising through hoardings within the limits of the Corporation?
HELD THAT:- In the present case, it cannot be lost sight of, as also elucidated in INDSIL HYDRO POWER AND MANGANESE LIMITED VERSUS STATE OF KERALA AND ORS. [2021 (9) TMI 1561 - SUPREME COURT], especially in Paragraph 56 thereof, after considering a host of precedents, that the imposition of royalty cannot be equated with imposition of tax/levy. Even otherwise, the law is no longer res integra that conduct of the parties and acquiescence would preclude a party from turning around and assailing a decision acquiesced to, except where there is an inherent lack of jurisdiction, or the exercise of authority is perverse or malafide, in law or in fact. In the instant factual setting, the advertising companies/respective Respondents No.1 had agreed in the year 2005 to pay a royalty of Re.1 per square foot to the Corporation for putting up hoardings/advertisements.
There are no hesitation to hold that such revision of rate was within the power of the Corporation. However, at this very stage, it is equally unhesitant to hold that the Resolution to charge enhanced royalty in exercise of purported power under Section 4318 of the Act was misplaced as royalty is not tax. It has been authoritatively clarified by this Court that royalty and tax are not one and same. As such, the Corporation’s power to charge royalty cannot be interfered with on the ground that the same is not available, either in the Act or in the Regulations concerned, as there is no question of the said ‘royalty’ being a tax. Section 431 of the Act, therefore, would not come into the picture where royalty, that too by way of and under an agreement/understanding is concerned.
In order to balance equities, the Court would indicate that the enhanced rate of Rs.10 per square foot would be payable by the respective Respondents No.1/advertising companies and other similarlysituated persons in terms of the Resolution of the Corporation from the date the same was made public/communicated to the concerned parties, whichever is later, with simple interest at the rate of 6% per annum. The Corporation is directed to furnish computation of amounts due to the parties concerned within 4 weeks. Payments be made within 16 weeks thereafter by the parties concerned, failing which they shall carry interest @ 10% per annum and be recoverable as arrears under the Bihar and Orissa Public Demands Recovery Act, 1914. Needless to state, amount(s), if any, paid over and above Re.1 per square foot, for the period in question, shall be adjusted towards the final liability to be determined by the Corporation vis-a-vis the respective Respondents No.1 herein and all other similarly-situated persons.
Appeal disposed off.
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2024 (10) TMI 972
Dishonour of cheque - security cheque or not - Presumption of innocence - challenge to acquittal of accused - HELD THAT:- The learned First Appellate Court acquitted the accused solely on the ground that the repeated presentation of the cheque and issuance of notice are not permissible. This finding of the learned First Appellate Court cannot be accepted. It was laid down by the Hon’ble Supreme Court in MSR Leathers [2012 (10) TMI 232 - SUPREME COURT] that there is nothing in the N.I.Act to prevent the repeated presentation of the cheque or issuance of successive notices. It was observed 'the prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act. The reference is answered accordingly.'
Therefore, the learned First Appellate Court erred in acquitting the accused on the ground that the cheque was presented repeatedly and the notices were issued twice. Hence, the judgment passed by the learned First Appellate Court is not sustainable.
Since, the learned First Appellate Court has not touched the other grounds challenging the judgment and order passed by the learned Trial Court, therefore, the matter is required to be remitted to the learned First Appellate Court for its afresh disposal as per the law. This is also necessary because the scope of appeal against the conviction is wider than the scope of appeal against the acquittal and it is not permissible for this Court to simply affirm the judgment of the learned Trial Court when the accused had no opportunity to get the finding on the points raised by him before learned First Appellate Court.
The present appeal is allowed and the judgment passed by the learned Sessions Judge, Hamirpur, is ordered to be set aside. The matter is remitted to the Court of learned Sessions Judge, Hamirpur, for its afresh disposal as per law.
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2024 (10) TMI 971
Seeking to set aside impugned order - petition does make out a genuine case of hardship - HELD THAT:- It is found strange, that a letter by Petitioner's Chartered Accountant was not accepted by the office. It is not clear why it was not accepted.
The impugned order is set aside - matter remanded for denovo consideration to Respondent No.2 - petition disposed off.
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2024 (10) TMI 888
Dishonour of Cheque - challenge to conviction and sentence under Section 138 of the Negotiable Instruments Act - applicability of presumption under Sections 118 and 139 of the Negotiable Instruments Act - HELD THAT:- In the instant case, there is no specific denial, if any, on the part of the accused with regard to his having issued Cheques as well as his signatures thereupon, rather, in his statement recorded under Section 313 Cr.P.C., he admitted complainant to be his acquaintance as well as factum of his having purchased the material, but for less amount. He categorically deposed that he had issued blank Cheque as a security, which subsequently came to be misused by the complainant. However, to probablize the aforesaid defence, no cogent and convincing evidence ever came to be led on record at the behest of accused, as such, no illegality can be said to have been committed by the learned Appellate Court while upholding the judgment of conviction and order of sentence recorded by learned trial Court. Since in the case at hand, factum of issuance of Cheques as well as his signatures thereupon never came to be refuted at the behest of accused, no illegality can be said to have been committed by both the Courts below while invoking Sections 118 and 139 of the Act, which speak about presumption in favour of the holder of the Cheque that Cheque was issued towards discharge of a lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused either can refer to the documents and evidence led on record by the complainant or presumption can be rebutted by leading positive evidence, if any.
The Hon’ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, [2012 (12) TMI 106 - SUPREME COURT], has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the Cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play.
In the case at hand, complainant while examining himself as CW-1, tendered affidavit Ex.CW1/A wherein he successfully reiterated the contents of the complaint. He successfully proved on record that he had sold articles of hardware and grill gate amounting to Rs.80,000/- to the accused, who with a view to discharge his liability issued two Cheques for sum of Rs.40,000/- each, but same were dishonoured on account of insufficient funds in his bank account vide returning memos Ex.C2 and Ex.C4 - there is no evidence worth credence suggestive of the fact that Cheques in question were issued as a security, but even if it is presumed that Cheques in question were issued as a security, that may not be of much help to the accused for the reason that by now it is well settled that Cheques, if any, issued as a ‘security’ can also be presented for encashment, if amount taken or promised to be repaid is not paid.
This Court finds that all the basic ingredients of Section 138 of the Act are met in the case at hand. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of insufficient funds in the bank account of accused and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties.
This Court sees no valid reason to interfere with the well reasoned judgments recorded by the Courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld.
The present criminal revision petition is dismissed being devoid of any merit.
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2024 (10) TMI 887
Dishonour of cheque - acquittal of the accused - cheque was given as collateral security or not - HELD THAT:- This Court has perused the impugned judgment and order of acquittal passed by the Trial Court and the decisions cited at the Bar. Considering the facts of the case, it reveals that the cheque in question was issued in favour of father of the complainant towards the debt and during the course of clearance of the cheque, the drawee was passed away and, therefore, the complainant posed himself as payee or the holder in due course issued notice as provided under Section 138 of the N. I. Act and the offence under Section 138 of the N.I. Act cannot be attributed. Therefore, the Trial Court has dealt with the contentions raised by the respective parties and rightly passed the impugned judgment and order of acquittal.
The Trial Court, after considering the evidence and the relevant decisions, has rightly passed the impugned judgment and order of acquittal and hence, no interference is required to be called for.
This Court is complete agreement with the findings recorded by the Trial Court and this Court does not find any infirmity and perversity in the impugned judgment and order of the Trial Court. Under such circumstances, the present appeal is devoid of merits and the same deserves to be dismissed.
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2024 (10) TMI 886
Application for grant of leave to file appeal - Acquittal of accused under Section 138 of the Negotiable Instruments Act - HELD THAT:- Evidently, a leave to appeal is required by the complainant of such cases, who is not a victim as defined above. The law is wellsettled that any person can set the criminal proceedings in motion, if he has knowledge of commission of any cognizable offences, such step may be taken by filing an F.I.R. with the police or a complaint petition before a Magistrate.
If such complainant, is not a victim as defined above then, he would be required to prefer leave application before the High Court for preferring appeal against acquittal. However, if the complaintant is a victim of the crime, he/she shall have right under Proviso to Section 413 BNSS to prefer appeal against acquittal, conviction for a lesser offence or imposing inadequate compensation.
This leave to appeal stands disposed of.
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2024 (10) TMI 885
Dishonour of Cheque - Issuance of summons in the complaint - role of petitioner in the firm's business - respondent seeks dismissal of the petition and submits that the appropriate stage for discharge is before the trial Court and not the inherent jurisdiction of this Court - HELD THAT:- It is clear that the petitioner was neither the signatory nor the proprietor of the firm which issued two cheques in question.
Before anyone can be summoned to face a criminal trial, the Magistrate must search for primafacie legally admissible evidence, which attributes some role that makes out a penal offense - In the present case, the complainant is silent about the petitioner's role and there is no evidence pointing out the petitioner’s criminal liability with the cheque.
In Anil Hada v. Indian Acrylic Ltd., [1999 (11) TMI 808 - SUPREME COURT], Hon’ble Supreme Court holds 'If the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. In such a prosecution the accused can show that the company has not committed the offence, though such company is not made an accused, and hence the prosecuted accused is not liable to be punished. The provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories.'
Thus, it is a fit case where the continuation of criminal proceedings shall amount to an abuse of the process of law, and the Court invokes its inherent jurisdiction under section 482 CrPC to quash the summons qua the petitioner and all subsequent proceedings.
The summoning orders qua all the petitioners, are quashed and set aside - petition allowed.
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2024 (10) TMI 795
Conspiracy and misconduct in sanctioning credit facilities - HELD THAT:- Perhaps the only material that creates suspicion is the speed with which the proposal of the Company was sanctioned. As far as the respondent is concerned, considering his position and the role ascribed to him in the grant of sanction to the loan proposal of the Company, mere suspicion against him is not enough to frame a charge against him. The proposal had passed through the Loan Advisory Committee which recommended the same. The proposal was placed before the respondent on 10th August 2010. As the credit proposal was beyond the sanctioning authority of the respondent, it was directed to be placed before the Management Committee. Apart from the Loan Clearance Committee, the proposal was approved by the Bank's Chief General Manager (Credit).
The respondent's role started with signing the Memorandum after it was approved by the Chief General Manager (Credit) and the Executive Director. A perusal of the Memorandum placed before the respondent for sanction showed that as many as 14 Public Sector Banks were lending to the Company apart from an international private sector bank - No material is placed on record to show that any of the accused other than bank officials ever met the respondent before the sanction of the proposal by the Management Committee. Only because the entire proposal was processed and cleared within a short span of time, no offence is made out against the respondent. Taking the material in the charge sheet as it is, complicity of the respondent is not made out.
There are no scope to interfere with the impugned order - appeal dismissed.
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2024 (10) TMI 794
Default in depositing amount - respondents had not deposited the balance sale consideration within the mandatory period of 90 days - whether there was any default on part of the respondents in depositing the balance amount within the time prescribed pursuant to the auction sale dated 10.04.2018 so as to attract Rule 9(4) of the Rules and allow the appellant-Bank to cancel the auction which had already been confirmed? - HELD THAT:- In the case at hand, the correspondence between the parties reveals that the respondents only sought extension of time for the reason that the appellant-Bank itself was not in a position to accept the amount as there was a complaint to the CBI, an advisory of the ED and a stay from the High Court. The silence on part of the appellant-Bank in either immediately revoking the sale confirmation or refusing to extend the time, impliedly amounted to extension of time in writing with consent.
Secondly, the non-deposit of the balance sale consideration within the time limit prescribed under Rule 9(4) was not attributable to the respondents so as to call them defaulters within the meaning of the provisions of Rule 9 (4) and (5) of the Rules.
The reason for the nonissuance of the sale certificate is solely attributable to the appellant-Bank and that there were no latches, negligence or default on part of the respondents in offering to deposit the balance auction amount. Since there is no default on their part, non-deposit of the said amount within the stipulated period would not be fatal within the meaning of sub-Rules (4) and (5) of Rule 9 of the Rules.
The High Court has not committed any error of law in the peculiar facts and circumstances of the case in holding that the appellant- Bank manifestly erred in cancelling the auction sale dated 10.04.2018 and in directing to issue sale certificate/register the sale deed in favour of the respondents after getting the balance auction amount deposited within a period of four weeks.
Appeal dismissed.
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2024 (10) TMI 793
Suit is barred by law u/s 34 of SARFAESI Act or not - petitioner is not having locus to file such proceedings since the petitioner is merely a shareholder - fraud and collusion between respondent no. 1, 3 and 4 - locus standi to challenge the actions of secured creditors - HELD THAT:- The contention of the learned counsel for the respondent that pleadings regarding fraud are inter se only between plaintiff and defendant nos. 3 and 4, cannot be accepted for simple reason that there are specific instances and allegations of collusion and fraud even played by bank/defendant no. 1 while sanctioning the loan and that too without any proper resolution passed by the Board of Directors of the company. Therefore, averments in the plaint are supported by document i.e order passed by NCLT would clearly go to show that prima facie there was mismanagement of the affairs of the defendant no. 2 and also obtaining of a loan thereby securing assets in favour of the bank, without following due process of law. With these averments in the plaint, contentions raised by the respondents needs to be rejected outright - it is clear from the record and more specifically the prayer, the suit is clearly maintainable as far as relief is concerned and that too when there are specific pleadings with regard to fraud and collusion between the bank and defendant nos. 3 and 4.
The question of fraud and collusion and the relief claimed in the suit of declaration that the loan facility and the mortgage created in favour of defendant no. 1 is a nullity, is certainly not coming within the jurisdiction of DRT or under the SARFAESI Act. Such declaration is only permissible under the Specific Relief Act.
The Court is duty bound to consider only the plaint and the documents relied therein. No document relied upon by the defendant could be looked into. The contention of Mr Kantak that the First Appellate Court in paragraph 25 relied upon the document produced by the defendants appears to be correct. A careful reading of the plaint and list of documents would go to show that such documents cannot be considered as contrary to the pleadings.
Plaintiff/petitioner was thrown out as having no locus to challenge the action of the secured creditors under Section 17 of the SARFAESI Act. Now by the impugned order plaintiff/petitioner is thrown out at the initial stage by a Civil Court thereby practically preventing the plaintiff from having any remedy available to him against the action of the secured creditors.
Having concluded that the plaint cannot be rejected and bar created under Section 34 of the SARFAESI Act cannot be applied to the averments in the plaint, option available to this Court is to quash and set aside both the orders of the trial Court thereby restoring the plaint to the file of Commercial Court to be decided in accordance with law.
Both the impugned orders are hereby quashed and set aside, plaint in Commercial Suit is restored.
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2024 (10) TMI 792
Dishonour of cheque - no specific overt act has been alleged or attributed against the petitioner for the commission of alleged offence - HELD THAT:- The Negotiable Instruments Act, 1881 was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 has inserted new Chapter XVII comprising sections 138 to 142 with effect from 01.04.1989 in the Act. Section 138 of the Act provides the penalties in case of dishonour of cheques due to insufficiency of funds etc. in the account of the drawer of the cheque. However, sections 138 to 142 of the Act were found deficient in dealing with dishonour of cheques. The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 amended sections 138, 141 and 142 and inserted new sections 143 to 147 in the Act aimed at speedy disposal of cases relating to dishonour of cheque through their summary trial as well as making them compoundable.
The Hon’ble Supreme Court in the case Electronics Trade & Technology Development Corporation Ltd., Secunderabad v. Indian Technologists & Engineers (Electronics) (P) Ltd. [1996 (1) TMI 398 - SUPREME COURT], observed that the object of bringing section 138 on statute appears to inculcate the faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments and section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a book and induce the payee or holder in due course to act upon it.
The Bengal Money Lenders Act, 1940 and Chapter XVII of the Negotiable Instruments Act, 1881 which was incorporated by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 for providing penalties in case of dishonour of cheques with an objective to encourage the culture of use of cheques and enhancing the credibility of the instrument. Both statutory provisions were enacted with different objectives and intent and are operational in independent and separate legal spheres.
There is no apparent conflict between provisions of the Bengal Money Lenders Act, 1940 which is not apparently bars civil remedy for a money lender who is not having valid licence or certificate for doing business of money lending and Chapter XVII of the Act which provides criminal remedies and penalties in case of dishonour of a cheque due to reasons as mentioned in section 138 of the Act.
There are insufficient reasons placed before this court that no proceedings can be initiated or continued and it would be gross abuse of process of law. The revisional application filed by the Petitioner has devoid of merits - revision dismissed.
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2024 (10) TMI 791
Extension of benefit of NFU Scheme to Group-B Officers of the petitioner-association - HELD THAT:- The learned Tribunal has not properly appreciated the contentions advanced in the OA. While no merits expressed on the entitlement of the petitioners to the relief sought by them, it was incumbent on the learned Tribunal to examine the petitioners’ prayer for extension of the benefit of NFU Scheme to Group-B Officers of the petitioner-association on merits, and return a finding of the prayer, one way or the other. That has not been done.
The impugned order cannot be sustained, and is accordingly quashed and set aside - Application stands remitted to the learned Tribunal for decision afresh in accordance with law, after extending an opportunity to all parties concerned.
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