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Indian Laws - Case Laws
Showing 661 to 680 of 26761 Records
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2023 (11) TMI 459
Appointment of an Arbitrator for decision on entitlement of the applicant to receive the amount claimed towards GST - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Notice in this application had been given to the respondents and they have filed a reply opposing the entitlement of the applicant for GST on merits, but no pleading has been taken in reply filed by the respondents as to why an Arbitrator cannot be appointed. Admittedly, there is an Arbitration Clause 25 in the agreement between the parties providing for arbitration in the event of a dispute arising between them. The existence of dispute is clear from the pleadings of both the parties and admittedly the applicant had issued Annexure P-3 notice dt. 9th December, 2021 for appointment of arbitrator.
Having regard to the fact that in the reply filed by the respondents there is no objection raised as to the appointment of Arbitrator, this application is allowed and Mr. L.N. Sharma, District & Sessions Judge (retired), R/o Laxmi Niwas, near Girls Senior Secondary School, The Mall Solan, H.P. is therefore appointed as Arbitrator to adjudicate the dispute between the parties, after his disclosure in writing is obtained in terms of Section 11(8) of the Act and only after receipt thereof, shall his appointment, as an Arbitrator, come into force.
Application disposed off.
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2023 (11) TMI 458
Dishonour of Cheque - acquittal of the accused - rebuttal of presumption - conviction of the accused under Section 138 of the NI Act - preponderance of probabilities - HELD THAT:- It is required to be seen that whether accused has been able to probabilise his defence. Here itself, it may be noted that the accused is not required to prove his defence on the standard of proof ‘beyond reasonable doubt’ and rather, is simply required to probabilise his defence. The presumption under Section 139 of the Act can be rebutted even by evidence led by the complainant; and it is not required for the defence to lead evidence to rebut presumption, as has been held by the Hon’ble Supreme Court in Shiv Kumar Vs. Ram Avtar Aggarwal, [2020 (2) TMI 1584 - SUPREME COURT].
In order to rebut the presumption available to complainant under Section 139 of the NI Act, accused can either appear in the witness box though it is not mandatory; or he can elicit circumstances favourable to him during the cross-examination of complainant; or put forth his defence in his statement under Section 313 Cr.P.C. supported by evidence. Here itself, it may be noted that statement of accused under Section 313 Cr.P.C is not a substantive piece of evidence. If accused put forth his defence in said statement, he must support it with evidence - simply by taking the stand either in reply to the legal notice or in the statement under Section 313 CrPC that accused had taken loan of Rs. 55,000/- only and that blank cheque was given as a security, it cannot be stated that presumption in favour of the complainant stands rebutted or that the defence is probablized.
It is no doubt true that when accused entered the witness box as DW1, he repeated this stand by way of his affidavit Ex.DW1/A to the effect that he had taken Rs. 55,000/- on 10.11.2008, in lieu of which accused had taken his signature on blank papers and had also taken a blank signed cheque as security. However, most importantly, when complainant-Girraj Sharma entered the witness box as CW1, this stand was not confronted by the accused to the complainant at all - There is no suggestion that complainant had taken any blank signed cheque as security from the complainant.
Despite receipt of the legal notice much prior to the filing of the complaint as evident from AD card Ex.C5 and as also candidly admitted by the accused, he did not respond to the legal notice and rather gave reply much after filing of the complaint and so said factor could not have been taken into consideration. Once the signature on the cheque were admitted by the accused in so many words, not only by making positive suggestion to the complainant, but also in his statement under Section 313 CrPC and then in his defence evidence, the existence of legal liability remained not in dispute at all, in view of presumption under Section 139 of the NI Act.
In the present case, the aforesaid provision was not at all attracted simply because signature on the cheque was made complete by the accused by overwriting on it. It was never the case of the accused that any material alteration was made in the cheque against his consent by the complainant or anybody else. Rather, he admitted his signature on the cheque in so many words at various stages of the trial, as already noticed - the impugned judgment of acquittal dated 26.02.2016 as passed by ld. Appellate Court is hereby set aside; and the judgment of conviction as recorded by the trial Court on 16.01.2014 is hereby restored.
Having regard to the overall conduct of the accused-respondent, he does not deserve any leniency. As such, the order dated 16.01.2014 qua the quantum of sentence, as recorded by Ld. JMIC, is also hereby restored. Respondent-accused is directed to surrender before the concerned trial Court/ld. CJM Faridabad within a period of 15 days from today, failing which the concerned Court will procure his presence by taking coercive steps, in accordance with law, and send him to jail for carrying out the sentence.
Appeal disposed off.
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2023 (11) TMI 406
Seeking appointment of an arbitrator for the adjudication of disputes - Section 11(6) of the Arbitration and Conciliation Act, 1996 - It is the case of the petitioner that instead of appropriately responding to the notice of arbitration, the respondent issued a letter dated 09.05.2022, terminating the Contract alleging non-compliance of work and nonfulfilment of the contractual obligation.
Whether the dictum as laid down in ICOMM TELE LTD. VERSUS PUNJAB STATE WATER SUPPLY AND SEWERAGE BOARD AND ORS. [2019 (3) TMI 600 - SUPREME COURT] can be made applicable to the case in hand more particularly when Clause 55 of the General Conditions of Contract provides for a pre-deposit of 7% of the total claim for the purpose of invoking the arbitration clause? - Whether there is any direct conflict between the decisions of this Court in S.K. Jain [2009 (2) TMI 926 - SUPREME COURT] and ICOMM Tele Limited? - HELD THAT:- The principles of law discernible from the aforesaid observations made by this Court in ICOMM Tele Limited are as under: (a) That the pre-deposit condition in an arbitration clause is violative of Article 14 of the Constitution of India being arbitrary. (b) Unless it is first found or prima facie established that the litigation that has been embarked upon is frivolous, the exemplary costs or punitive damages cannot follow. (c) Deterring a party to an arbitration from invoking the Alternative Dispute Resolution Process by pre-deposit of certain percentage would discourage arbitration. This would run contrary to the object of de-clogging the court system and would render the arbitral process ineffective and expensive.
In the decision of the Calcutta High Court in M/S AMAZING INDIA CONTRACTORS PVT. LTD. VERSUS THE AIRPORT AUTHORITY OF INDIA AND ORS. [2023 (6) TMI 1331 - CALCUTTA HIGH COURT], ICOMM Tele Limited and PERKINS EASTMAN ARCHITECTS DPC & ANOTHER VERSUS HSCC (INDIA) LTD. [2019 (11) TMI 1154 - SUPREME COURT] were relied upon and ultimately, it was held that Clause 33 of the agreement therein between the parties providing for constitution of a “Dispute Resolution Committee” with a stipulation that before availing of dispute resolution clause, the disputed amount has to be deposited, was held to be invalid and contrary to law.
As such there is no conflict between S.K. Jain and ICOMM Tele Limited, as the relevant arbitration clauses that fell for the consideration of this Court in both the cases stood completely on a different footing. What is relevant to note are the points of law on which S.K. Jain [2009 (2) TMI 926 - SUPREME COURT] was distinguished and explained in ICOMM Tele Limited.
Keeping the aforesaid in mind, on looking into the 7% pre-deposit condition in the case on hand, as contained in Clause 55 of the GCC it is evident that nothing has been provided as to how this amount of 7% is to be ultimately adjusted at the end of the arbitral proceedings. With a view to salvage this situation, the learned counsel appearing for the respondent invited the attention of this Court to Clause 3 of the GCC, which relates to the security deposit for performance.
Whether this Court while deciding a petition filed under Section 11(6) of the Act 1996 for appointment of a sole arbitrator can hold that the condition of pre-deposit stipulated in the arbitration clause as provided in the Contract is violative of the Article 14 of the Constitution of India being manifestly arbitrary? - HELD THAT:- Kelson’s pure theory of law has its pyramidical structure of hierarchy based on the basic norm of Grundnorm. The word ‘Grundnorm’ is a German word meaning fundamental norm. He has defined it as ‘the postulated ultimate rule according to which the norms of this order are established and annulled, receive or lose their validity’. It is the Grundnorm which determines the content and validates the other norms derived from it. But from where it derives its validity, was a question which Kelson did not answer, stating it to be a metaphysical question. Grundnorm is a fiction, rather than a hypothesis as proposed by the jurist - The argument canvassed on behalf of the respondent that the petitioner having consented to the pre-deposit clause at the time of execution of the agreement, cannot turn around and tell the court in a Section 11(6) petition that the same is arbitrary and falling foul of Article 14 of the Constitution is without any merit.
It is a settled position of law that there can be no consent against the law and there can be no waiver of fundamental rights.
Whether the arbitration Clause No. 55 of the Contract empowering the Principal Secretary/Secretary (Irrigation), State of Uttarakhand to appoint an arbitrator of his choice is in conflict with the decision of this Court in the case of Perkins Eastman [2019 (11) TMI 1154 - SUPREME COURT]? - HELD THAT:- There are a plethora of judgments of this Court even prior to the amendment of Section 12, where courts have appointed the arbitrators, giving a go-by to the agreed arbitration clause in certain contingencies and situations, having regard to the provisions of unamended Section 11(8) of the Act which, inter alia, provided that while appointing the arbitrator, Chief Justice, or the person or the institution designated by him, shall have regard to the other conditions as are likely to secure the appointment of an independent and impartial arbitrator.
The courts in the United States of America have also deliberated upon the doctrine of unconscionability on numerous occasions. The Court of Appeal of California in the case of Patterson v. ITT Consumer Financial Corporation, had the occasion to consider whether the requirement for the claimants to pay a filing fee along with hearing fees for the purpose of resolving the matter could be said to be unconscionable. The Court of Appeals held that such a condition was “incomprehensible” and discouraged the borrowers from pursuing their claims.
The two conditions contained in Clause 55 of the GCC, one relating to 7% deposit of the total amount claimed and the second one relating to the stipulation empowering the Principal Secretary (Irrigation) Government of Uttarakhand to appoint a sole arbitrator should be ignored and it is proceeded to appoint an independent arbitrator.
Application allowed.
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2023 (11) TMI 362
Dishonour of Cheque - insufficiency of funds - rebuttal of presumption - it is alleged that the learned trial Court has not considered the law and facts involved in the present case as the complainant could not plead and prove, in this case, that there was any subsisting liability at the time of issuance of cheque in question - quantum of sentence - HELD THAT:- The accused, in the present case, has denied that he has ever issued the cheque in question. However, the accused has neither adduced any evidence nor appeared in the witness box to depose as per the stand taken by him. The statement of accused recorded under Section 313 Cr.P.C does not fall within the definition of evidence as per Section 3 of the Evidence Act - In such situation, when the accused himself has not appeared in the witness box to depose about the stand as taken by him in the statement recorded under Section 313 Cr.P.C, then, the said stand has rightly been discarded by the learned trial Court. As such, there is no occasion for this Court to differ with the findings recorded by the learned trial Court while convicting the accused under Section 138 of the N.I. Act.
Quantum of sentence - HELD THAT:- In the absence of any sentencing policy in our country, the sentencing part has been left to the discretion of the Court. The law is good, but justice is better. Considering the said fact, while deciding the quantum, it was incumbent upon the learned trial Court to consider the fact about the benefit which had drawn by the accused for committing the offence alleged against the complainant - The learned trial Court has awarded the compensation of Rs.3,50,000/- and the said order of quantum of sentence has not been assailed by the complainant before the learned Appellate Court or before this Court.
Considering the peculiar facts and circumstances of the case that the accused has not only deposited the entire amount of compensation, but, also the compounding fee, the revision petition against the judgment of conviction is dismissed, however, the order of quantum of sentence is liable to be modified by reducing the substantive sentence from 12 months to the sentence of imprisonment till ‘rising of Court’ - Revision disposed off.
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2023 (11) TMI 361
Dishonour of Cheque - amicable settlement of matter - compounding of offence - HELD THAT:- In view of the fact that the complainant has received Rs.1,30,000/- from the applicant/convict, as full and final settlement of the complaint filed by the appellant-complainant under Section 138 of the NI Act and the parties have amicably settled the matter, coupled with the fact that the complainant has no objection in case the accused-respondent is acquitted of the offence under Section 138 of the Negotiable Instruments Act, therefore, this Court sees no impediment in accepting the prayer made on behalf of the parties for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], wherein the Hon’ble Apex Court has held that Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that ‘No offence shall be compounded except as provided by this Section’.
In K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT], it has been held by the Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction.
Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has paid Rs.1,30,000/-, as full and final settlement amount to the appellant-complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court.
The present matter is ordered to be compounded and the judgment is quashed and set-aside and the petitioner accused is acquitted of the charge framed against him under Section 138 of the Act - taking into consideration the law laid down by the Hon’ble Apex Court (supra) and the financial condition of the petitioner, as he is a poor person, since the competent Courts can reduce the compounding fee with regard to the specific facts and circumstances of the case, the petitioner is directed to deposit token compounding fee of Rs.2,500/- (rupees two thousand five hundred) only with H.P. State Legal Services Authority, Shimla, H.P., within four weeks from today.
Application disposed off.
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2023 (11) TMI 360
Dishonour of Cheque - legally enforceable debt or not - acquittal of accused - non-joinder of drawer of the disputed cheque - fatal to the proceedings under Section 138 of the Negotiable Instruments Act or not - HELD THAT:- The issue whether the learned Magistrate committed any error in dismissing the complaint by holding that non-joinder of drawer of the disputed cheque i.e. Company is fatal to the proceedings under Section 138 of the Negotiable Instruments Act is no longer res integra - The similar had question arose for consideration before three Judges Bench of the Hon'ble Supreme Court in the case of Anita Handa [2012 (5) TMI 83 - SUPREME COURT] as to whether the complaint under Section 138 of the Negotiable Instruments Act and Section 141 thereto against the Director or authorized signatory of the cheque without arraigning the company as accused, was maintainable? Initially, the matter was notified before two Judges Bench, which due to diversion of opinion, was referred to the three Judges bench. The Hon’ble Supreme Court had upon analysis of relevant provisions of the Negotiable Instruments Act, held that Section 141 uses terms ``person” and refers it to a company. The Company is treated as a juristic person in the eyes of law and the concept of corporate criminal liability is attracted to a corporation and company. The said provisions of the Act invariably held in offences by the Company, certain categories of officers in certain circumstances are deemed to be guilty of the offence under Section 138 of the Negotiable Instruments Act.
In view of the aforesaid analysis drawn by the Hon’ble Supreme Court, this Court is of the view that non-joinder of the Company as accused, which otherwise is treated as principal offender being drawer of the cheque, the Director of the Company joined as sole accused representing the company as well as authorised signatory, would not served the provisions of Section 141 of the Act. Thus, no arguable case is made out to grant this application seeking special leave to appeal.
Appeal disposed off.
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2023 (11) TMI 250
Dishonour of Cheque - documentary evidence not produced - admissions elicited during cross-examination - HELD THAT:- The cross-examination of the complainant shows that the cheque amount exceeded the outstanding amount. The complainant stated that it was subsequently decided in the agreement that 90% of the amount would be paid at the time of dispatching machinery from his premises. However, this agreement was not placed on record - The evidence of the complainant further revealed that the total cost agreed between the complainant and the accused for dairy equipment was Rs. 10,25,000/-. The invoice (Exh.42) also establishes this fact. It is not in dispute that Rs. 7,40,000/-was paid by the accused to the complainant, and only Rs. 2,85,000/-was due from the accused. The cheque (Exh.39) is Rs. 4,95,000/-which is more than the outstanding amount from the accused. The complainant admitted this fact in his cross-examination.
The complainant's case is not substantiated by documentary evidence. The total amount due of Rs. 12,93,875/-could not be proven by any bill on record. The complainant's admission during cross-examination that the cheque amount exceeded the outstanding amount was also to be taken into consideration. Given the circumstances, the observations of the Magistrate cannot be considered erroneous, especially when there is no documentary evidence and the admissions were elicited during cross-examination.
Appeal dismissed.
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2023 (11) TMI 249
Dishonour of settlement - amicable settlement between the parties - compromise also arrived at - HELD THAT:- Since the parties are entering into compromise at the stage of revision, therefore, law laid down by the apex Court in the case of DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] will be applicable in this case where it was held that In view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act.
In view of the aforesaid judgement, and considering the fact that the parties have amicably settled their dispute and have entered into compromise before this Court in the revision and decided to avoid further litigation, hence, the applicant is liable to pay 2% of the cheque amount i.e. Rs. 36,000/-by way of cost to be deposited with the "State Legal Services Authority" Indore - Subject to payment of cost at the rate of 2% of the cheque amount with the "State Legal Services Authority" Indore, within a period of 15 days from today, the applicant be released from the jail and if not in jail, the applicant shall be treated as acquitted from the charges under Section 138 of N.I. Act on the basis of compromise.
Revision disposed off.
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2023 (11) TMI 143
Grant of Interim Relief - denial of of interim relief on the ground that there is an alternate remedy available - HELD THAT:- If the High Court has found that the matter was worth admitting then there was no question of non-considering the issue with regard to grant or refusal of interim relief, on the ground that there is an alternate remedy - When the High Court finds that there is merit in the matter and admits it, then it was also bound to consider as to whether the interim relief should have been granted or not.
Non-granting of interim relief on the ground that there is an alternate remedy available is totally contradictory to the earlier part of the order admitting the matter - Non-consideration of the question of grant or refusal of interim relief, in our considered view, would be a failure to exercise the jurisdiction vested in the High Court.
The impugned order set aside - matter remitted back to the High Court - appeal allowed.
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2023 (11) TMI 142
Dishonour of Cheque - noncompliance of certain terms of the settlement agreement, has been settled - compounding of offences - HELD THAT:- As per the judgment delivered by a learned Division Bench of this Court in Dayawati v. Yogesh Kumar Gosain, [2017 (10) TMI 1063 - DELHI HIGH COURT] once the offence under Section 138 of the NI Act is compounded in terms of Section 147 of the said Act, the recovery of the agreed upon amount, has to be realized in terms of Section 431 read with Section 421 of the CrPC. It is pertinent to note that the only thing which the Court in terms of the aforesaid provisions can do is attach the properties of the accused persons. Powers to issue non-bailable warrants with the learned Metropolitan Magistrate at the stage when the proceedings in the complaint case are over has not been provided for. A bare reading of the said provisions reflects that the mandatory presence of accused persons has not been provided for. The warrant will only be issued for attachment and not for arrest.
In view of the scheme of the CrPC and the observations made in Dayawati (supra), this Court is of the considered opinion that once a compromise has been arrived at and an offence under Section 138 of the NI Act is compounded, the concerned Court, after passing an order compounding the offence can only proceed for attachment in terms of Sections 421 and 431 of the CrPC. Thus, the non-bailable warrants issued were without jurisdiction and therefore, the consequent proceedings under Section 82 of the CrPC were also invalid.
This Court is of the opinion that in the present case, no useful purpose will be served by continuing with the proceedings in the subject FIR and it is an appropriate case for quashing the same in order to secure the ends of justice - Petition allowed.
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2023 (11) TMI 141
Dishonour of Cheque - no evidence given to demonstrate that notice was served on a particular date - it was nowhere written in the complaint as to when the notice was served on the accused - HELD THAT:- The date of the receipt of notice is very much important but it is not necessary that any particular date as regard receipt of demand notice should mandatorily be mentioned in the complaint itself - In judgment of Deepak Kumar and Another [2006 (9) TMI 617 - ALLAHABAD HIGH COURT], this High Court observed that in case dates are not revealed in the complaint, the same can be inferred from the paper on record.
In this case the complainant, in his complaint, clearly stated that the notice was sent through a registered post on 19.11.2019 and that it was never returned to the complainant. In view of the above statement in the complaint and in view of the papers produced viz, the cheque, the Bank memo, demand notice, the disclosure of material dates like, date of dishonour, date of sending the notice, the date on which 15 days elapsed, the date of the filing of the complaint clearly and explicitly mentioned in para no. 12 of the complaint, there remains no doubt that the petition is wholly without merit. It may specifically be noted that para no. 12 of the complaint discloses a date of service of notice as well, a fact which has been conveniently ignored by the accused petitioner all the while - an attempt to stall the proceedings has been made on the basis of non-existent ground.
There are no infirmity, illegality or irregularity in the summoning order dated 10.12.2020 as well as the order dated 20.01.2023 - petition dismissed.
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2023 (11) TMI 140
Dishonour of Cheque - existence of legally enforceable debt or not - acquittal of accused of all charges - amicable settlement arrived at between both the parties - HELD THAT:- The contention of the petitioner that the claim of the balance amount on settlement not being the amount of cheque, the present proceeding under Section 138 N.I. Act being not maintainable, is not in accordance with law, as the payment was not made between the date when cheque was drawn and the date when the cheque was presented on maturity, and on the date of presentation, the total cheque amount was payable by the petitioner towards an enforceable debt and liability.
The revisional application is accordingly dismissed.
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2023 (11) TMI 52
Dishonour of Cheque - Veracity of the said ‘Authority Letter’, the execution thereof and the phraseology used therein - HELD THAT:- Records reveal that the petitioner has nowhere disputed the execution of a ‘Promissory Note’, in his handwriting, under his signatures, acknowledging his liability of the debt to the respondent no. 2 and his wife. Similarly, the petitioner has also nowhere disputed the factum of issuance of any of the aforesaid 9 cheques or his signatures thereon or his handwriting thereon. So much so, the petitioner has also nowhere denied that there is no liability/ debt against the aforesaid 9 cheques. It is also nowhere denied that all the aforesaid 9 cheques were [i] pertaining to the very same transaction; [ii] issued on the same date; and [iii] returned on the same date by the very same Bank - A perusal of the pleadings made by the petitioner herein also disclose that there is no such averment exhibiting any special cause and/ or reason made anywhere before this Court to exercise its inherent powers under Section 482 CrPC.
With respect to issue(s) of the execution of the ‘Authority Letter’, the phraseology used therein as also the same being improperly executed, non-filing of the complaint under Section 138 NIA by the wife of the respondent no. 2, respondent no. 2 not being either the payee or the holder in due course, and non-certification of the bank memo or the return slip by the bank, in the opinion of this Court, the aforesaid being disputed questions of facts, require trial and due adjudication by the learned Trial Court and not by this Court and that too at this stage, whence the learned MM is already seized of the complaint and has merely passed the summoning order.
In the opinion of this Court, if this Court proceeds to consider the aforesaid issues, it would tantamount to holding a mini trial, which as per trite law and under the facts and circumstances involved herein, is per se not permissible under Section 482 CrPC, especially whence the trial before the learned MM is ongoing. This Court cannot substitute or carry out the functions of the learned Trial Court. In any event, considering that the proceedings before the learned MM are at a very nascent stage, it would be improper for this Court to enter the merits of the Complaint Case.
In the opinion of this Court, the petitioner has not been able to make out a case for invoking its powers under 482 of the CrPC. More so, whence the present petition has been filed on technical grounds wherein almost more than 2 years have elapsed and the issues raised therein are a matter of trail. As per this Court, the present petition seems to be motivated to somehow delay and derail the proceedings/ trial before the learned MM. Thus, the present petition is a fit one calling for not only dismissal but also for imposition of costs.
The present petition along with the application is dismissed with costs of Rs. 50,000/- to be paid in favour of the Delhi State Legal Services Committee within a period of two weeks.
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2023 (11) TMI 1
Dishonor of Cheque - legally enforceable debt or not - Transaction in violation of Section 269-SS of Income Tax Act - unaccounted cash - Can such tranaction be permitted to be enforced, by institution of proceedings under Section 138 of the Negotiable Instruments Act ? - HELD THAT:- Acceptance of an amount exceeding Rupees Twenty Thousand in cash attracts penalty under Section 271-D of the Act of 1961 but such acceptance does not nullify the transaction. Infact, the penalty can be waived on showing reasonable cause. Hence, violation of Section 269-SS by the drawer of the cheque would not render the amount in question non-recoverable.
A transaction not reflected in the books of accounts and/or Income Tax returns of the holder of the cheque in due course can be permitted to be enforced by instituting proceedings under Section 138 of the Act of 1881 in view of the presumption under Section 139 of the Act of 1881 that such cheque was issued by the drawer for the discharge of any debt or other liability, execution of the cheque being admitted. Violation of Sections 269-SS and/or Section 271-AAD of the Act of 1961 would not render the transaction unenforceable under Section 138 of the Act of 1881.
The decisions in Krishna P. Morajkar [2013 (7) TMI 1163 - BOMBAY HIGH COURT], Bipin Mathurdas Thakkar and Pushpa Sanchalal Kothari [2015 (2) TMI 1351 - BOMBAY HIGH COURT] lay down the correct position and are thus affirmed. The decision in Sanjay Mishra [2009 (2) TMI 901 - BOMBAY HIGH COURT] with utmost respect stands overruled.
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2023 (10) TMI 1453
Rejection of application of the Chinese University of Hong Kong for grant of patent - Interpretation of "diagnostic" methods in the context of patent law - scope of words “diagnostic, therapeutic” after the word “prophylactic” in Section 3(i) - HELD THAT:- The language of Section 3(i) uses the expression “diagnostic...or other treatment of human beings” and thereby appears to point in the direction of examining embodiments or use cases of processes to determine if they are diagnostic. Nonetheless, it should not be lost sight of that patent eligibility is decided at the threshold by examining claims that could have multiple use cases. Consequently, in the context of diagnostic processes, I am of the view that the embodiments of a claimed invention are relevant only for the purpose of ascertaining whether the process of the claimed invention per se points to a diagnosis for treatment. If such process does not uncover pathology for any reason, it would not be diagnostic for purposes of Section 3(i).
What is determinative, therefore, of whether a process is diagnostic is to ask the question whether the process is inherently and per se capable of identifying the disease, disorder or condition for treatment of the person. It bears repetition that such capability of the process should, in turn, be determined by assuming that a person(s) skilled in the art, including a medical doctor, examines the results. If the person(s) skilled in the art would not be in a position to diagnose the disease, disorder or condition, as the case may be, on the basis of the process because the process is not designed to diagnose diseases, disorders or conditions, such process, whether labelled as screening or anything else, would not qualify as diagnostic for purposes of Section 3(i) - The corollary would be that the Controller would be required to make this determination on a case- by-case basis. Into which category, the claimed invention falls remains to be considered.
It cannot be concluded that the process described by the claimed invention is not diagnostic because neither definitive nor comprehensive diagnosis is a prerequisite to qualify as diagnostic. Once it is concluded that the claims are patent ineligible, it is not necessary to deal with the other grounds of decision, such as lack of inventive step, and sufficient to record that the impugned order does not warrant interference.
Application dismissed.
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2023 (10) TMI 1449
Seeking a direction from this Court to the Registry of this Court for releasing the statutory deposit (Rs.7.5 crores) along with the accrued interest thereon - HELD THAT:- The Registry is directed to release the amount of Rs.7.5 crores along with interest accrued thereon in favour of the Respondent.
Application disposed off.
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2023 (10) TMI 1402
Seeking grant of interim bail to facilitate the undertaking of necessary medical tests and treatment under the supervision of his personal physician - HELD THAT:- This Court places the health and well-being of an individual as the foremost consideration, irrespective of the gravity of the alleged offense. It's important to recognize that custody during the investigative phase should not be perceived as punitive. Every individual has the inherent right to receive comprehensive and effective medical care. This Court firmly upholds the belief that individuals in custody with serious health issues should be granted access to adequate and effective medical treatment. The exercise of discretion in granting interim bail on medical grounds should not be restricted to circumstances where the person's life is in immediate peril. Moreover, there is no conflicting medical report indicating that the petitioner's surgery is unnecessary. The undisputed fact remains that the petitioner is suffering from specific ailments that demand medical attention, particularly regarding his right eye.
Considering the painful and pressing nature of the petitioner's reported health conditions, and without delving into the merits of the case, this Court is inclined to grant interim bail solely for the purpose of allowing the petitioner to undergo the necessary medical examination. The medical report clearly indicates that the petitioner requires cataract surgery on his right eye. Therefore, it is a reasonable proposition to permit him to seek treatment at the same hospital where he had the surgery for his left eye.
The petitioner/A.37 is entitled to interim bail on medical grounds subject to fulfilment of conditions imposed - petition allowed.
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2023 (10) TMI 1399
Dsihonour of Cheque - insufficiency of funds - accused denied the incriminating questions in the examination under Section 313 of the Code of Criminal Procedure - HELD THAT:- In the case on hand, admittedly, the complainant is a firm. The complaint is filed by the firm in its name and is represented by its Branch Manager, who has been authorised as per Ext.P10 resolution. There is also a specific assertion in the complaint that PW1 is competent to represent the firm - this Court is of the view that the finding of the learned Magistrate that PW1 is incompetent to file the complaint is erroneous and unsustainable in law.
In K. BASHEER VERSUS C.K. USMAN KOYA AND ORS. [2021 (3) TMI 1228 - KERALA HIGH COURT], this Court has held that no particular form is prescribed under the Act concerning a notice under Section 138(b) of the Act, except that the payee or holder in due course should make a demand for the payment of the amount of money within 30 days from the receipt of intimation from the bank regarding the return of the cheque and the Court cannot legislate by prescribing a particular form and cannot require that the nature of the transaction leading to the issuance of cheque be disclosed in the notice when the statute does not provide for it.
In the present case, at the risk of repetition, it is reiterated that the complainant had instituted the complaint through PW1, who is authorised to file the complaint. In the trial, the complainant examined PWs1 and 2 and marked Exts.P1 to P12. PW2, in clear terms, testified that he is aware of the transactions between the complainant firm and the accused - the complainant has discharged its initial onus of proof by satisfying the concomitants constituting the ingredients under Section 138 of the Act and has shifted the reverse onus of proof onto the shoulders of the accused.
Admittedly, the accused had not sent a reply notice. Instead, the accused has marked Ext.D1 receipts in evidence to substantiate his payments to the complainant. Ext.D1 receipts corroborate the testimonies of PWs. 1 and 2 and Ext.P11 statement that the accused had business transactions with the complainant.
On a comprehensive re-appreciation of the materials placed on record, particularly the oral testimonies of PWs 1 and 2 and Exts.P1 to P12, this Court finds that the accused has failed to discharge the reverse onus of proof under Section 139 of the Act and, therefore, the finding of the learned Magistrate is erroneous. Consequently, the accused is liable to be convicted for the offence under Section 138 of the Act.
In DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], the Honourable Supreme Court has held that, unlike other forms of crime, the punishment under Section 138 of the Act is not a means of seeking retribution but a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the accused being incarcerated. While passing an order of sentence for the offence under Section 138, the courts must keep the compensatory aspect in mind rather than giving priority over the punitive part.
This Court deems it justifiable to sentence the accused to undergo imprisonment for one day and pay compensation to the complainant with a default sentence - the impugned order is set aside - appeal is allowed.
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2023 (10) TMI 1375
Pre-litigation Mediation and Settlement - Order VII, Rule 11 of the Code of Civil Procedure, 1908 - HELD THAT:- In the present case, it is an accepted fact that an urgent interim relief has been prayed for and the condition that the plaint "contemplates" an urgent interim relief is satisfied. Therefore, the impugned judgment/order of the Delhi High Court, which upholds the order of the District Judge (Commercial Court)-01, South District at Saket, New Delhi dated 06.02.2023, rejecting the application under Order VII, Rule 11 of the Code, is correct and in accordance with law.
When a plaint is filed under the CC Act, with a prayer for an urgent interim relief, the commercial court should examine the nature and the subject matter of the suit, the cause of action, and the prayer for interim relief. The prayer for urgent interim relief should not be a disguise or mask to wriggle out of and get over Section 12A of the CC Act. The facts and circumstances of the case have to be considered holistically from the standpoint of the plaintiff. Non-grant of interim relief at the ad-interim stage, when the plaint is taken up for registration/admission and examination, will not justify dismissal of the commercial suit under Order VII, Rule 11 of the Code; at times, interim relief is granted after issuance of notice. Nor can the suit be dismissed under Order VII, Rule 11 of the Code, because the interim relief, post the arguments, is denied on merits and on examination of the three principles, namely, (i) prima facie case, (ii) irreparable harm and injury, and (iii) balance of convenience. The fact that the court issued notice and/or granted interim stay may indicate that the court is inclined to entertain the plaint.
The proposition that the commercial courts do have a role, albeit a limited one, should be accepted, otherwise it would be up to the plaintiff alone to decide whether to resort to the procedure under Section 12A of the CC Act. An `absolute and unfettered right' approach is not justified if the pre-institution mediation under Section 12A of the CC Act is mandatory, as held by this Court in PATIL AUTOMATION PRIVATE LIMITED AND ORS VERSUS RAKHEJA ENGINEERS PRIVATE LIMITED [2022 (8) TMI 1494 - SUPREME COURT] - The words `contemplate any urgent interim relief' in Section 12A(1) of the CC Act, with reference to the suit, should be read as conferring power on the court to be satisfied. They suggest that the suit must "contemplate", which means the plaint, documents and facts should show and indicate the need for an urgent interim relief.
The present special leave petition is dismissed.
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2023 (10) TMI 1374
Rejection of plaint under Order VII Rule 11(d) for non-compliance of Section 12A of the Commercial Courts Act, 2015 - suit for recovery of arrears of rent with interest - whether the learned DJ could have dismissed the suit only on the ground that the appellant has not complied with Section 12-A of the CCA? - HELD THAT:- It is settled law that that in terms of the judgment Patil Automation Pvt. Ltd. [2022 (8) TMI 1494 - SUPREME COURT], the compliance of Section 12-A of the CCA is mandatory unless urgent relief is contemplated. A notification has been issued by the Government of India on July 03, 2018 by which the Central Government has made rules in respect of Commercial Courts (Pre-Institution of Mediation and Settlement) Rules, 2018 as contemplated under sub-section 21A read with sub-section (1) of Section 12-A of the CCA.
The sub-section 2 of Section 12-A mandate the Central Government may by notification authorise the authorities constituted under the Legal Services Authorities Act, 1987 for the purposes of Pre-Institution Mediation - In the present case, the appellant has not made his claim in terms of the notification of July 03, 2018 before the District Legal Services Authorities (DLSA) but had approached the DHCMCC(S) which held the proceedings on three occasions and the defendant/respondent despite service did not appear, resulting in Non-starter report being submitted by the DHCMCC. This report was not accepted by the learned DJ as the report is not that of DLSA.
The issue which falls for consideration is whether the learned DJ was right in rejecting the plaint only on the ground that the appellant has approached DHCMCC(S) and not DLSA, by invoking the provisions of Order VII Rule 11(d). It is true that the provisions of the Section 12-A of the CCA specifies Pre-Institution Mediation as mandatory, in the sense that any litigation must be preceded by an attempt on the part of the parties to settle their inter se dispute, but the fact that the appellant had invoked the process of mediation before the DHCMCC(S) under the aegis of the Delhi High Court and the defendant/respondent did not appear in the proceedings, resulting in a Non-starter report would surely be construed to mean that an attempt has been made by the appellant to settle his dispute with the defendant/respondent, amicably which failed.
So, the DHCMCC(S) being a court-annexed mediation centre though under the Mediation Act, 2023 and not under the CCA Act, we are of the view that there has been a compliance of the spirit underlying Section 12A of the CCA. The issue can be seen from another perspective as the respondent had neither appeared before the DHCMCC(S) nor before the learned District Judge, despite service, the likelihood of effective pre-litigation mediation to be undertaken under the aegis of DLSA is highly unlikely as the respondent/defendant will not appear making it a futile exercise.
The impugned order/judgment dated May 15, 2023 rejecting the plaint under Order VII Rule 11(d) is set aside - Appeal allowed.
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