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Indian Laws - Case Laws
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2023 (11) TMI 878
Allegation against the officials of four public sector oil companies viz. IOCL, HPCL, BPCL and IBP - Respondent Accused were discharged by the CBI Court - Sale of High Speed Diesel (HSD) to various private industries of three States viz. Gujarat, Maharastra and Madhya Pradesh at concessional rates of sales tax - non-compliance with the mandatory requisite permission from the Ministry of Petroleum & Natural Gas - Revenue loss to Government - HELD THAT:- In the case of MOHD. HADI RAJA VERSUS STATE OF BIHAR AND ORS. [1998 (4) TMI 576 - SUPREME COURT], the Apex Court observed that the importance of the public undertaking should not be minimised. It is observed that the government's concern for the smooth functioning of such instrumentality or agency can be well appreciated but on the plain language of Section 197 of the Code of Criminal Procedure, the protection by way of sanction is not available to the officers of the public undertaking because being a juridical person and distinct legal entity such instrumentality stands on a different footing than the government departments.
Here, in the case on hand, the aspect of sanction by the authority concerned would bear not of much importance. The issue is whether C.B.I. had any case to even lodge a prosecution. Admittedly CVC too had not found any case against the accused to grant sanction.
The compilation and circulation by OCC on 08.07.1991, of the Guidelines for Release of Petroleum Products and Lubricants to Direct Consumers have not been denied, which suggests that the same was in force and all oil companies were following the guidelines since 1991. The chargesheet has been filed for period between 1997-2000. The guidelines of OCC dated 08.07.1991 had not found any change.
The letter of the OCC dated 04.12.1996 to the under Secretary MoP&NG, New Delhi, for the requirement of HSD/ HF HSD/LSHF and NGL/Naphtha for M/s. Shaynoa Petrochem Ltd. for manufacture of speciality solvent and lubricants, reflects that the TEC was required to evaluate the requirement, and submit the recommendation to MoP&NG and based on the recommendation of the TEC, it was noted that, MoP&NG, may consider to release of HSD/HF-HSD/LSHF for processing use ex-Koyali refinery, while the supply of NGL ex-Hazira was ruled out, as the only possibility was of supplying Naphtha ex-Koyali refinery of IOC - While observing the TEC by the Circular dated 27.03.2002, it was specifically noted by the under Secretary, Government of India that the matter was reviewed by the Ministry and on dismantling of the APM from 01.04.2002, in the circular, it was noted that the price of diesel would be also decontrolled, and under such circumstances, the specific objective and role of the TEC had lost its purpose and relevance, and were informed that the TEC stood dissolved with effect from 01.04.2002.
This Court finds that the Special Judge, CBI Court No. 2 Ahmedabad has not committed any error in discharging the accused by allowing their Criminal Revision Applications preferred against the orders of rejection of their discharge applications by orders dated 27.05.2019 below different Exhibits in 36 applications and by the orders dated 13.03.2018 below different Exhibits in 3 applications by the Learned Additional Chief Judicial Magistrate, Special CBI Court No. 1, Ahmedabad in Special Case arising out of FIR RC No. 12(A)-2000-GNR. No sanction has been granted for prosecuting the officers of the oil companies. The assessment made by the Special Judge discharging the accused is consistent with the record.
The orders passed by the learned Special Judge, CBI Court No. 2, Ahmedabad allowing the Revision Applications and discharging the accused – respondents herein are just and correct, the findings are in accordance to the documents on record, the accused are rightly discharged, as there are no sufficient grounds for proceedings against them - Application dismissed.
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2023 (11) TMI 814
Condonation of delay of around 479 days in presentation of the appeal - whether the first respondent had shown sufficient cause for which the appeal could not be presented within the prescribed period of limitation? - HELD THAT:- The High Court’s decision to condone the delay on account of the first respondent’s inability to present the appeal within time, does not suffer from any error warranting interference.
STATE OF NAGALAND VERSUS LIPOK AO [2005 (4) TMI 321 - SUPREME COURT] arose out of an appeal where this Court condoned the State’s delay of 57 days in applying for grant of leave to appeal before the high court against acquittal of certain accused persons. This Court observed that in cases where substantial justice and a technical approach were pitted against each other, a pragmatic approach should be taken with the former being preferred. Further, this Court noted that what counted was indeed the sufficiency of the cause of delay, and not the length, where the shortness of delay would be considered when using extraordinary discretion to condone the same.
In BALWANT SINGH VERSUS JAGDISH SINGH [2010 (7) TMI 556 - SUPREME COURT], this Court refused to condone the delay of 778 days in bringing on record the legal heirs of the petitioner therein through an application filed under Order XXII Rule 9 of the Code of Civil Procedure, 1908. It was observed that though sufficient cause should be construed in a liberal manner, the same could not be equated with doing injustice to the other party. For sufficient cause to receive liberal treatment, the same must fall within reasonable time and through proper conduct of the concerned party. The Court emphasised that for such an application for condonation to be seen in a positive light, the same should be bona fide, based on true and plausible explanations, and should reflect the normal conduct of a common prudent person.
As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests.
The special circumstances obtaining here that the impugned order reasonably condones the delay caused in presenting the appeal by the first respondent before the High Court, the present appeal is, accordingly, dismissed.
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2023 (11) TMI 780
Seeking grant of bail - Smuggling - supply of Ketazee 500 injections - recovery of Pseudoephedrine Hydrochloride, which is a controlled substance under the NDPS Act, and Ketamine Hydrochlroide, which is psychotropic substance under the NDPS Act - applicability of Section 37 of the NDPS Act - HELD THAT:- In N.C. Chellathambi v. N.C.B. [2005 (4) TMI 647 - DELHI HIGH COURT], this court granted bail to the applicant in a case of recovery of Ephedrine, a controlled substance.
In view of the recovery of Pseudoephedrine, which is a controlled substance, this Court is of the opinion that Section 37 of the NDPS Act will not be attracted in the present case as the allegations with respect to the present applicant are covered under Section 25A of the NDPS Act.
In view of the facts and circumstances of the present case, the applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- along with two sureties of the like amount, to the satisfaction of the Learned Trial Court/Link Court, further subject to the conditions imposed - application allowed.
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2023 (11) TMI 747
Dishonour of Cheque - insufficient funds - clubbing of three cheques in a single complaint - Pre-summoning evidence - HELD THAT:- Since it is settled law that the NI Act and the provisions therein, including that of Section 138 NI Act are pertaining to a Special Act, they have to be mandatorily complied with.
As per the facts involved, though the first cheque issued on 15.12.2016 was dishonoured on 23.12.2016 and the Legal Notice dated 17.04.2017 qua it was barred by limitation, however, admittedly, since all the subsequent three cheques issued on 15.01.2017, 15.02.2017 and 15.03.2017 were dishonoured thereafter only on 24.03.2017, the same Legal Notice dated 17.04.2017 qua them was well within the prescribed statutory period. The said Legal Notice being valid, the subject complaint qua the said three cheques also being well within the statutory time period, is also very much valid.
In the present case, as the Legal Notice dated 17.04.2017 issued by the respondent specifically entails the specific details qua the dates and amounts of all the respective four cheques involved, separately, there can be no dispute qua maintainability of the subject complaint qua them before the learned MM. The said Legal Notice dated 17.04.2017 issued by the respondent is to be read as a whole and not in piecemeal - as neither there is any omnibus demand made by the respondent in the Legal Notice issued within the stipulated time period, nor there is any illegal amount demanded by him, in the facts of the present case, the subject complaint is per se maintainable in the eyes of law. It is also worth noting that the learned MM vide order dated 30.05.2017 issued summons to the petitioners and then rightly framed notice under Section 251 CrPC dated 25.03.2019 to the petitioner no. 2 qua the said three cheques only.
Not only that, as the pre-summoning evidence led by the respondent before the learned MM is also based only on the three subsequent cheques dishonoured on 24.03.2017, there is no occasion for this Court to interfere with the proceedings before the learned MM by allowing the present petition.
The present petition alongwith the applications, if any, is dismissed and in view of the conduct of the petitioners, with a token costs of Rs. 25,000/- (Rupees Twenty Five Thousand Only) to be paid to the respondent within a period of two weeks.
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2023 (11) TMI 746
Deposit of interim compensation under Section 143-A(2) of the Negotiable Instruments Act, 1881 - HELD THAT:- Perused the Section 143-A of the Negotiable Instruments (Amendment) Act, 2018 (20 of 2018). As per said Amendment Act, trial Court is vested with power to direct accused person to deposit interim compensation not exceeding 20% of the amount of the cheque. Section 143-A (3) provides that interim compensation shall be paid within sixty days from the date of order under Sub-section (1) and Court may also extend the said period if sufficient cause is being shown by the drawer of the cheque. Section 143(4) lays down that if drawer of cheque is acquitted, Court shall direct the complainant to repay to the drawer the amount of interim compensation with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial years, within sixty days from the date of the order.
Since, application of Section 143-A of the Negotiable Instruments (Amendment) Act, 2018 (20 of 2018) was held to be prospective in nature and in present case complaint case was filed on 25.08.2018 and amendment was brought into force on 01.09.2018, therefore, trial Court has committed an error in directing payment of interim compensation under Section 143-A of the Negotiable Instruments (Amendment) Act, 2018 (20 of 2018).
Petition allowed.
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2023 (11) TMI 745
Dishonour of Cheque - different cause of action for different seven cheques - main ground for impugning the orders is that a single complaint could not be filed for seven cheques which are stated to have been issued by the petitioner/accused as the cause of action for each cheque is different - HELD THAT:- The cheques purportedly issued by the accused form part of a single transaction or different one cannot be finally determined by this Court at this stage though the complainant in the complaint mentions of issuance of cheques in pursuance to the transactions between him and the accused. The provisions of Section 219 Cr.P.C would apply in the case in hand so as to knock out the case of the complainant wherein seven cheques have been mentioned to have been issued and get dishonoured cannot be adjudicated upon in the present petition. The Court is of the view that the revisional court has erred in stating that the facts disclosed in the complaint constitute one offence and that Section 219 Cr.P.C has no application in the present case as it is a matter of trial whether the cheques in question could be clubbed in a single complaint.
The Court will not entertain the petition under Section 482 Cr.P.C unless there are exceptional circumstances which the court considers that in case the proceedings before the trial court are allowed to continue, the same shall be abuse of process of law. The Court in exercise of powers vested under Section 482 Cr.P.C cannot determine the disputed questions of fact which may be raised by the party in the criminal proceedings.
It is a matter of trial that the argument raised by the petitioner herein carries weight or not cannot be determined in the present petition.
Petition disposed off.
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2023 (11) TMI 744
Dishonour of Cheque - seeking permission to compound the offence - Section 147 of the Negotiable Instruments Act, 1881 - HELD THAT:- The offence under Section 138 of the NI Act can be compounded at any stage and overrides the effect of Section 320(9) of the Cr.P.C. (which otherwise provides that no offence shall be compounded except as provided by the Section), in view of the fact that Section 147 of the NI Act was inserted by way of an amendment to a special law and the Section commences with a non obstante clause. Consequently, in light of the compromise Petition filed before this Court, enumerating the terms of consent and the submissions of the Learned Counsel for the parties that the settlement was arrived at between the parties without duress on either party from any quarter, the compromise Petition is accepted and taken on record. The compounding of the offence is allowed. The order of conviction handed out to the Petitioners is set aside. The Petitioners are consequently acquitted of the offence under Section 138 of the NI Act.
Learned Senior Counsel for the Petitioners submits that in terms of the Order of this Court, dated 24-10-2019, an amount of ₹ 5,00,000/- (Rupees five lakhs) only, had been deposited before the Learned Trial Court. That, in view of the compromise arrived at by the parties, and as agreed to by the parties before this Court today, the Petitioners be permitted to withdraw the deposited amount of ₹ 5,00,000/- (Rupees five lakhs) only.
The prayer of Learned Senior Counsel for the Petitioners is allowed. He is permitted to withdraw the amount of ₹ 5,00,000/- (Rupees five lakhs) only, deposited - Petition disposed off.
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2023 (11) TMI 716
Dishonour of Cheque - insufficient funds - legally enforceable debt or not - accused denied the incriminating circumstances appearing in the evidence against him in the questioning under Section 313 of the Code of Criminal Procedure - HELD THAT:- In the case at hand, admittedly, the accused was a Head Constable in the Kerala Police service. He has alleged that for the business purpose of his brother (DW2), he gave signed blank cheques to DW2, who had business transactions with Anilkumar. The said Anilkumar allegedly trespassed into DW2's shop and stole the cheques. Instead of complaining to the Police, DW2 issued Ext D1 lawyer notice to Anilkumar threatening to initiate proceedings. But no action is seen taken. It is making use of one of the stolen cheques, the complainant launched the prosecution. Therefore, there is no legally enforceable debt payable by the revision petitioner/accused to the first respondent/complainant.
The courts below, after appreciating the materials on record, have concurrently concluded that the defence set up by the accused is highly improbable, especially taking into account the fact that he was a Police officer. If at all his cheque was stolen, he would have certainly initiated criminal proceedings. Instead, he remained silent and made his brother(DW2) to issue a lawyer notice to the said Anilkumar.
There are no error, illegality or impropriety in the conclusions arrived at by the courts below to take a contrary view - the conviction and sentence passed by the courts below is confirmed - The revision petition is dismissed.
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2023 (11) TMI 672
Constitutional validity of the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022 - HELD THAT:- The petitioners are challenging the Act of 2022, namely the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022. The impugned Act is enacted in the backdrop of the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 (hereinafter referred to as “the Amendment Act of 2021”), which had sought to ban online games such as “rummy” and “poker” played with stakes or money. The said Amendment Act of 2021 was struck down in its entirety by this Court and was declared as ultra vires the Constitution of India under the detailed judgment dated 03.08.2021 in the case of Junglee Games [2021 (8) TMI 1377 - MADRAS HIGH COURT].
The intention and object of promulgating the impugned legislation, no doubt, appears to be laudable and bonafide. However, mere intention and bonafides would not be sufficient to uphold the legislation. The legislation has to withstand the test of legislative competence and should be free from manifest arbitrariness. The same will also have to be viewed on the premise of the rights of the parties being trampled or otherwise - The State is empowered to legislate in respect of the Entries in List II of the VII Schedule. Entry 34 of the State List includes “betting and gambling”. The State certainly has the authority to legislate in respect of betting and gambling. This Entry 34 of the State List viz, “betting and gambling” was the subject matter of consideration before the Apex Court in catena of cases.
In the present case, the platform provider or the game provider is charging a fixed sum and is not claiming shares in the profits. If the game providers have been claiming shares in the profits, then that would be a different situation altogether, but here, a fixed percentage of sum is charged - The State has relied upon its power to legislate in view of Entry 1 and Entry 6 of the State List. Entry 1 of the State List deals with public order and Entry 6 of the State List deals with public health, sanitation, hospitals and dispensaries.
The concern expressed by the State about public health of its citizens is but natural. The State has to take care of the public health of its citizens. Section 5 of the impugned Act authorises the authority, by notification and with the previous approval of the Government, to make regulations to carry out the provisions of the Act namely, time limit, monetary limit, age restriction or such other restrictions in regard to playing of online games. The State certainly has the power to regulate online games of skill. It can control and regulate the games of skill. The State can provide for the time limit, that the game may not be played after a particular time and it would have the necessary infrastructure and expertise to take all the measures that the games would not be played within the State after a particular time. It can also regulate the age restriction and other aspects. The same would be within the competence of the State.
The impugned Act, in its entirety, need not be held to be ultra vires. It is held that the State is competent to legislate to the extent of prohibiting online gambling, i.e., games of chance, at the same time, it has got the authority to regulate online games of skill. The definition of “online gambling” under Section 2(i) of the impugned Act shall be read as restricted to “games of chance” and not games involving skill. Section 2(l)(iv) of the impugned Act would not be entirely valid. The games of rummy and poker are games of card, but are games of skill. Section 2(l)(iv) is being read down, to mean, it excludes games of skill viz., rummy and poker - Having held that the State has got the authority to legislate on online games of chance, as gambling would be betting on the games of chance, it is not necessary to declare Sections 7, 8 and 9 of the impugned Act as ultra vires.
The prayer to declare the entire impugned Act of 2022 as ultra vires is negated. The Schedule of the impugned Act, including the games of rummy and poker, are set aside. Sections 2(i) and 2(l)(iv) of the impugned Act shall be read as restricted to games of chance and not games involving skill, viz., rummy and poker.
Petition allowed in part.
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2023 (11) TMI 671
Dishonour of Cheque - discharge of legally enforceable debt or not - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- As the mode of advancing the amount to the revision petitioner was not a circumstance appearing in evidence against the revision petitioner, absence of a question in the 313 examination regarding the mode of payment will not in any way vitiate the trial.
The revision petitioner if wanted to rebut the presumption under Section 139 of the N.I Act, he should have adduced cogent evidence for disproving the entry dated 27.09.2006 in Ext.P6 document. It is true that, the revision petitioner can even rely on the materials submitted by the complainant/1st respondent, in order to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, without adducing separate evidence of his own. In the case on hand, the materials and evidence on record adduced from the side of the 1st respondent are not capable of rebutting the presumption, in favour of the revision petitioner even by preponderance of probabilities. So he was bound to adduce evidence of his own so as to rebut the presumption but it was not done.
Since the presumption stands unrebutted, this Court has to hold that, the appellate court rightly upheld the conviction of the revision petitioner under Section 138 of the N.I Act, and sentenced him to undergo imprisonment till rising of the court and to pay fine of Rs. 4 lakh and in default to undergo simple imprisonment for two months, with a further direction that if the fine amount is realised, it will be paid to the 1st respondent as compensation under Section 357(1) of Cr.P.C.
The revision petition is dismissed, upholding the impugned judgment in Crl. Appeal No. 213 of 2009. The revision petitioner is directed to surrender before the trial court on or before 28.11.2023 to receive the sentence and to pay the fine amount. In default, the trial court has to issue arrest warrant against the revision petitioner for executing the sentence.
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2023 (11) TMI 670
Condonation of delay in filing review petitions - whether the petitioners have established sufficient cause for not preferring the review petitions within the statutory period? - ground for the exercise of the discretion in condoning the delay, established or not - HELD THAT:- The expression “sufficient cause” contained in Section 5 of the Limitation Act is elastic enough to yield different results depending upon the circumstances of the case. The criteria to be applied in condoning the delay in different claims may be different. For example, in the case of beneficial legislations a liberal interpretation must be given to the expression “sufficient cause” to serve its object. The concept of reasonableness demands that the courts, while taking a liberal approach, must also consider the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence of the other, the Court shall refrain from exercising the discretionary relief. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute mandates so. The Court has no power to extend the period of limitation on equitable grounds.
In Basawaraj [2013 (12) TMI 274 - SUPREME COURT], the Supreme Court held that ‘sufficient cause’ means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has not acted diligently or remained inactive. The Supreme Court further held that the applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The Court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose, the Supreme Court added.
The review petitions have been filed by the power of attorney holder of the petitioners. No materials have been placed before the Court to show that the review petitioners had any inconvenience or difficulty in prosecuting the matter. The power of attorney holder of the review petitioners pleaded that he was suffering from asthmatic complaints. No materials have been produced to explain the delay of 288 days in preferring the review petitions. The claim of the review petitioners lacks bona fides.
Application dismissed.
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2023 (11) TMI 669
Dishonour of Cheque - insufficient funds - discharge of legally enforceable cheque or not - vehicle covered by the hire purchase loan agreement was already seized by the complainant/1st respondent and it was sold out for profit - HELD THAT:- The case of the 1st respondent is that the cheque was issued after seizure and sale of the vehicle, and after adjusting the sale price towards the loan amount. But PW1 admitted that Rs. 57,000/- was already repaid in ten installments and the vehicle was seized and sold, and to his memory, the sale price was Rs. 25,000/-. But he has not produced any scrap of paper to show that the balance amount was calculated as Rs. 1,24,500/-. No notice was seen issued to the revision petitioner intimating the balance due, and asking him to remit that amount. The vehicle was seized and sold in the year 1998. The cheque is dated 06.02.2002. There is nothing to show that in the year 2002, the revision petitioner reached the office of the 1st respondent to issue Ext.P3 cheque. No evidence is there to prove that Ext.P3 cheque was issued towards the balance amount due, after adjusting the sale price.
The conviction and sentence imposed on the revision petitioner under Section 138 of the Negotiable Instruments Act is set aside - Revision petition is allowed.
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2023 (11) TMI 668
Dishonour of Cheque - insufficient funds - It is alleged that illegality has been committed by the Trial Court in passing hasty judgment depriving the rights of the accused to cross-examine PW1 - HELD THAT:- On reading Indian Bank Association case [2014 (5) TMI 750 - SUPREME COURT], there is no observation or the law laid down by the Hon'ble Apex Court that the statement of accused under Section 313 of Cr.P.C., has to be recorded on the date of the appearance before the Trial Court. In the said judgment, the Hon'ble Apex Court has issued guidelines to the Trial Courts dealing with N.I. Act cases to expedite the Trial. The Trial Court is duty bound to follow the mandates of the Apex Court in expediting the trial of the cases by following the provisions of N.I. Act. The hasty procedure adopted by the Trial Court is unknown to law. Thereby, it has affected the principles of natural justice. When lis is pending, either civil or criminal, it is the duty of the Court to afford sufficient opportunity to the parties to prove their respective cases. Unless opportunity is given to the parties to the litigation, it cannot be said that justice is being given to the parties to the lis. It is submitted that the accused has got good defence to defend himself.
The Trial Court hurriedly passed the judgment of conviction. Therefore, in view of these factual features coupled with non-following of proper procedure by the Trial Court, the impugned judgments are required to be interfered with and are liable to be set aside - The criminal revision petition filed by the petitioner-accused is hereby allowed.
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2023 (11) TMI 667
Seeking grant of Bail - applicant was not arrested during the investigation - cheating 13000 investors to the tune of Rs.5600 crores - HELD THAT:- The FIR, for the offences u/s 409, 465, 467, 468, 471, 474, 477- A, 120-B of IPC, u/s 3 of the MPID Act and sections 21(a), 21(b), 21(c) and 21(g) of the FCR Act, 1952 was registered way back in the year 2013. According to applicant, he has furnished all record and documents in the form of electronic data in soft copies, hard-disk, server and e-mails to the investigation agency. Today the applicant is present before the court pursuant to the fact he was served with the summons issued by this court. The investigation machinery choose not to arrest the applicant, for 10 long years, inspite of the fact that, the applicant was available. Rather, it can be gathered that the I.O. did not want his custody. The offences u/s 467 is punishable for imprisonment for life.
The prosecution has not placed any criminal antecedents on record except for the present case. There are no allegations that the applicant has not co-operated with the investigation agency. There will be no point in sending the accused in jail as investigation is completed and charge-sheet is filed.
It is directed that Applicant/accused Sunil Gupta, be released on execution P.R. bond of Rs.50,000/- with one or two sureties in the like amount - Today the applicant/accused Sunil Gupta, be released on furnishing Provisional cash bail of Rs.50,000/- - bail application allowed.
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2023 (11) TMI 606
Seeking compliance with the Memorandum of Understanding - exercise of power under Rule 1 of Order XL of the Code of Civil Procedure, 1908 - HELD THAT:- The order passed by the Civil Court in Bihar was appealable under Order XLIII of the CPC. Instead of availing the remedy of the appeal, the first respondent took the extraordinary step of invoking the jurisdiction of the Bombay High Court under Article 226 of the Constitution of India by specifically challenging the order of appointment of the Receiver passed by the Civil Court in Bihar - the first respondent ought not to have filed such a petition when a statutory remedy was available. Moreover, the High Court ought not to have entertained the Writ Petition. The jurisdiction of the High Court under Article 226 is no doubt very wide. But the propriety and judicial discipline required the High Court not to entertain such a petition. The High Court ought to have relegated the first respondent to the statutory remedy while possibly granting a limited protection.
A statutory remedy was available to the first respondent before the concerned Court in Bihar. If the High Courts start entertaining Article 226 petitions for challenging the orders passed by the Civil Courts in other states, it will lead to a chaotic situation. Therefore, there are no manner of doubt that the impugned order will have to be set aside.
Also, the appellant has indulged in the suppression of material facts while persuading the Trial Court to pass a drastic order for appointing a Court Receiver. There is another feature of the case. In the written statement filed by the defendants in the suit filed by the appellant, an issue of maintainability was raised. The order of the Trial Court noted that the first respondent had mortgaged the properties. The Trial Court did not pay attention to the issue of maintainability as well as the issue of territorial jurisdiction. An order appointing a Court Receiver has very drastic consequences. As noted earlier, such a drastic order was casually passed by the Civil Court.
The impugned order dated 27th September 2023 passed by the Bombay High Court set aside - Writ Petition No.7064 of 2023 dismissed on the ground that a statutory remedy was available to the first respondent and therefore, the Bombay High Court ought not to have entertained the Writ Petition under Article 226 of the Constitution of India for challenging the order passed by a Civil Court in another State - appeal allowed in part.
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2023 (11) TMI 605
Dishonour of Cheque - accused is before this Court contending that the findings of both orders are contrary to the well settled principles of law and is liable to be set aside - rebuttal of presumption - HELD THAT:- Having regard to the fact that accused admit that the cheque in question is drawn on his account maintained with his banker and it bears his signature, presumption under Sections 118 and 139 of N.I. Act is attracted to the effect that the cheque was issued towards legally recoverable debt or liability. Therefore, the initial burden is on the accused to prove that no consideration has passed i.e, the cheque was not issued towards repayment of any legally recoverable debt or liability and the circumstances in which the cheque has reached the hands of the complainant. Only after the accused rebut the presumption, the burden shifts on the complainant to prove his case, including passing of consideration and his financial capacity to lend such huge sum of money at the relevant point of time.
The accused has stepped into the witness box and deposed that the cheque in question as well as the demand Promissory note were given to the son of complainant in connection with the chit fund business run by him and misusing the same, the complainant has filed this complaint. Of course the cross-examination of accused establish the fact that during 2013, he had taken loan of Rs. 16 lakhs from Vijaya Bank and he is repaying the same.
Though the demand Promissory Note state and also it is pleaded by the complainant that accused had agreed to repay the said sum along with interest at 2% p.m., there is no explanation for not making any attempts to recover the interest. Both trial Court as well as the Sessions Court has failed to appreciate the oral and documentary evidence placed on record by the complainant in the light of specific defence taken by the accused. Simply on the basis that presumption under Sections 118 and 139 of N.I. Act, they proceeded to convict the accused. The findings of the trial Court as well as the Sessions Court are contrary to the evidence placed on record and as such perverse. It is erroneous and calls for interference by this Court.
The Criminal Revision Petition filed under Section 397 r/w 401 Cr.P.C is allowed.
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2023 (11) TMI 568
Dishonour of Cheque - acquittal of the accused - cheque issued towards legally enforceable debt - Whether the judgment of acquittal passed by the trial Court is perverse and arbitrary so as to call for any interference by this Court? - HELD THAT:- In the instant case, the accused has raised a defence of financial capacity. No doubt, accused has not raised this defence by replying to the notice. However, in TEDHI SINGH VERSUS NARAYAN DASS MAHANT [2022 (3) TMI 797 - SUPREME COURT], the Hon'ble Apex Court has clearly observed that the accused inspite of non-issuance of reply notice can raise a defence of financial status by leading cogent evidence, on the basis of cross-examination of complainant or pleadings made in the complaint itself. In the instant case, the complainant nowhere asserted that she mobilized such a huge amount of Rs. 1,50,000/- in 2007. As rightly observed by the trial Court she has not even examined her husband to prove the financial status of her husband or the financial assistance made by her husband.
Further, accused is not required to prove his defence on the same standard as that of complainant by proving the same beyond all reasonable doubt. He can prove his defence only on the basis of the preponderance of probability. The view taken by the learned Magistrate in view of challenging the financial status of the complainant is a possible view and in view of the full bench decision of Apex Court in M/S. KALAMANI TEX & ANR VERSUS P. BALASUBRAMANIAN [2021 (2) TMI 505 - SUPREME COURT] case the view taken by the learned Magistrate cannot be disturbed. Further, when two conclusions are possible, the view favourable to the accused shall prevail.
The point under consideration is answered in the negative - the appeal being devoid of any merits, does not survive for consideration - Appeal dismissed.
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2023 (11) TMI 518
Dishonour of Cheque - discharge of legally enforceable debt or not - acquittal of the accused - rebuttal of presumption - HELD THAT:- It is a settled position in law that for the purpose of the prosecution under section 138 of the NI Act, an instrument must be entered into by the person who owes a legally enforceable debt to another and such person who takes over the liability of the former to discharge such debt in favour of the latter. The party to whom such debt is owed must either be made a party to such instrument or must be informed of such assignment/transfer of liability. A mere statement that the cheque was issued by a person to discharge the liability of another is not sufficient to set the wheels of criminal prosecution under section 138 of the NI Act in motion.
The presumption under section 139 of the NI Act is rebuttable. The benefit under this section cannot be availed if the accused raises a plausible defence, which creates doubts about the existence of a legally enforceable debt or liability. To create such doubt, the accused can rely on the materials submitted by the complainant in order to raise such a defence, and it is conceivable that in some cases, the accused may not need to adduce evidence of his/her own.
In the present case, the cheque was not issued by the accused towards the discharge of liability of the debt of Mr Dhaval Bhatt owed by him to the complainant. If the cheque had been issued by Mr Dhaval Bhatt for the outstanding amount of Rs. 10,02,980/-, the accused could have availed the benefit of section 139 of the NI Act. However, in the absence of the assignment of liability of Mr Dhaval Bhatt unto the accused and there being no nexus between the issuance of the said cheque and the liability of the accused to repay the outstanding amount to the complainant, the trial Court rightly concluded that the complainant failed to prove that the dishonoured cheque was issued by the accused for discharge of liability.
The trial Court has rightly acquitted the accused for the offence punishable under section 138 of the NI Act - Appeal dismissed.
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2023 (11) TMI 461
Refund of amount being the fair charges for the consignments - Failure to deliver the export goods within stipulated time frame - Export Consignment through Air - direction for payment for compensation for loss of business and reputation - requirement to pay for value of the goods short delivered - payment for interest and well as cost of litigation - HELD THAT:- The NCDRC has not committed any illegality or perversity in recording the finding that there was delay in delivery of consignment. As a matter of fact, it is an admitted position that the consignment which was booked on 24.07.1996, was delivered after one and a half month i.e. from 03.09.1996 to 12.09.1996 - The NCDRC has rightly noted that the appellant has paid air freight which is ten times more than the sea freight only to ensure that the consignment reaches its destination within a week because sea cargo would have taken 25 to 30 days for delivery and the appellant has paid such huge freight charges for ensuring early delivery, hence, the delay in delivery of consignment has necessarily inflicted damage to the appellant which is liable to be satisfied by the respondent No.1 as provided under Section 19 and 13(3) of the Carriage by Air Act 1972.
Section 186 of the Contract Act, 1872 provides that authority of an agent may be expressed or implied. Similarly, Section 188 of the Contract Act, 1872 prescribes that an agent, having an authority to do an act, has authority to do every lawful thing which is necessary in order to do such act - In the case at hand, in the absence of a plea by the respondent No.1, that the respondent no. 2 was not its agent or that he had no authority to give schedule of delivery of consignment, the onus has not been discharged. Therefore, the respondent No.1 is bound by the promise held by its agent, respondent No.2, that the goods shall be delivered within one week and when the time schedule expired and the goods were, in fact, delivered after one and a half month, there was negligent delay in delivery of consignment.
The grievance of the appellant in this appeal is mainly on account of the NCDRC not allowing the entire claim for compensation by calculating the total weight of the subject consignment at 2507.5 Kg. multiplied by US $ 20 per Kg. According to the appellant, in view of Rule 22 (2) of Schedule-III of the Carriage by Air Act, 1972 (as amended by the Hague Protocol) the amount thus calculated would exceed the sum of Rs. 20 lakhs. The appellant would thus claim the entire amount equivalent to US $ 50070 without limiting it to Rs. 20 lakhs - the Order passed by the NCDRC need not be interfered with - appeal dismissed.
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2023 (11) TMI 460
Dishonour of Cheque - postponement of issue of process - mandatory inquiry in terms of Section 202 of the CrPC can be conducted on the basis of pre summoning evidence or not - HELD THAT:- It is clear that in cases under Section 138 of the NI Act, the mandatory inquiry as contemplated by Section 202 of the CrPC can be conducted by taking evidence of the complainant on affidavit. The inquiry need not be necessarily conducted by taking evidence on oath. Further, documents may be examined by the Trial Court for satisfaction as to the sufficiency of grounds for proceeding under Section 202 of the CrPC.
Whether the learned MM in the present cases has conducted an inquiry under Section 202 of the CrPC before issuance of summons to the Accused? - HELD THAT:- In light of the presumption under Section 139 of the NI Act, a cheque given under Section 138 of the NI Act is presumed to be in discharge of a legally enforceable debt or other liability. The aforesaid presumption is rebuttable and the accused can rebut this presumption by leading evidence in this regard. Therefore, the contention of the Accused that a legally enforceable debt has not accrued in favour of the Complainant on account of non-fulfilment of the conditions in the Agreement would have to be proved by leading evidence at the time of trial. The learned MM is not required to go into this evidence while conducting an inquiry under Section 202 of the CrPC - At the stage of issuance of summons, for the purpose of Section 202 of the CrPC read with section 145 of the NI Act, the learned MM is only required to examine whether the basic ingredients of an offence under Section 138 of the NI Act have been prima facie made out by the complainant and supported by the pre-summoning evidence led on behalf of the complainant.
Upon dishonour, statutory notice under Section 138 of the NI Act had been duly issued by the Complainant to the Accused and the Accused failed to make the payment within fifteen days of the receipt of the notice - both the summoning orders issued by the learned MM in the present cases satisfy the requirements of Section 202 of the CrPC read with Section 145 of the NI Act.
In both the complaint cases, the learned MM has duly conducted the necessary inquiry under Section 202 of the CrPC before issuance of summons to the Accused.
If the contention of the Accused is accepted that the MM has to conduct an inquiry by appreciating the terms and conditions of the Agreement entered into between the parties to ascertain if a legally enforceable debt has arisen, it would result in a full trial being conducted even before the issuance of summons. Clearly, such an exercise would be in teeth of the directions passed by the Supreme Court in Re: Expeditious Trial of Cases Under Section 138 of NI Act 1881 (2021 (4) TMI 702 - SUPREME COURT).
Application allowed.
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