|
Advanced Search Options
Indian Laws - Case Laws
Showing 721 to 740 of 26767 Records
-
2023 (10) TMI 486
Conversion of foreign exchange rate of awarded sum money - Relevant date for conversion of the awarded sum from USD to Indian rupees - Whether the award contained any stipulation of making the payment in Indian currency? - HELD THAT:- The terms of the agreement are to be looked into for the purposes of deciding the question regarding the date of conversion.
In the entire agreement, the relevant paragraphs dealing with the payments and advances and the payments of work in progress is laid down in paragraphs 31 and 32 and its sub-paragraphs. Paragraph 32.6 of the agreement states that payments against monthly account bills shall be made in Iraqi Dinars and US Dollars out of which 35 percent would be in Iraqi Dinars and 65 percent would be in US Dollars. Further, paragraph 32.8 defines the exchange rate for the purposes of conversion of Iraqi Dinars to US Dollars and the exchange rate being 01 Iraqi Dinar equivalent to 3.37778 US Dollars.
There are no mention of payment being made in the Indian Currency i.e. INR from the agreement. Once there is no contract between the parties of making payment in Indian Currency INR, then, there would be no question of determining or finding out any date of conversion.
Whether the award contained any stipulation of making the payment in Indian currency? - HELD THAT:- The agreement had stipulated that the Iraqi Dinar would be convertible to US Dollars at the following rate i.e. 1 Iraqi Dinar = 3.37778 US Dollars. The award does not permit or grant the liberty to the appellant to make the amount payable in Iraqi Dinars to be converted into Indian Currency (INR) - Apart from the amount of Bank Guarantee which had been encashed by the NPCCL of Rs.20 Lakhs, the other amount awarded is in Iraqi Dinars only.
Whether the agreement, award or the judgment of this Court dated 24.02.2015 provided for payment of the awarded amount in Indian currency? - HELD THAT:- The award does not permit payment of the awarded amount in Indian currency except the amount of Rs. 20 lacs with admissible interest against the encashment of bank guarantee. As a necessary corollary, there would be no question of the amount awarded in Iraqi Dinars to be converted in Indian currency. The only conversion permissible was in US Dollars. In the above back drop, the question referred by the impugned judgment to be answered by this Court may not arise at all.
Thus, there is no occasion or requirement for determining or fixing any date for conversion of the US Dollars into Indian Currency (INR). The payment has to be made in the foreign currency only along with computed interest. It would be open for the parties to pay and the other parties claiming to accept the Indian currency either at the current rate or at the agreed rate but this Court cannot meddle with the terms of the agreement or the award or the directions contained in the judgment of this Court dated 24.02.2015.
Appeal disposed off.
-
2023 (10) TMI 418
Dishonour of Cheque - existence of a legally enforceable debt - discharge of initial onus of proving the essential facts underlying the offence under Section 138 of the NI Act - signature on the cheque was admitted by the accused - rebuttal of statutory presumption under Section 139 NI Act -
Whether the accused can be said to have discharged his 'evidential burden', for the courts below to have concluded that the presumption of law supplied by Section 139 had been rebutted?
HELD THAT:- The presumption under Section 139 was rebutted by putting questions to the appellant in his cross examination and explaining the incriminating circumstances found in the statement recorded under Section 313 of Cr.P.C.
Section 139 of the NI Act, which takes the form of a ‘shall presume’ clause is illustrative of a presumption of law. Because Section 139 requires that the Court ‘shall presume’ the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase ‘unless the contrary is proved’ - As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words ‘until the contrary is proved’ occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist - The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
There is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.
The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque.
There are no slightest of hesitation in concluding that this case calls for interference, notwithstanding that both the courts below have concurrently held in favour of the accused - the judgment of the High Court of Punjab and Haryana at Chandigarh set aside - appeal allowed.
-
2023 (10) TMI 417
Seeking partial setting aside of award - patent illegality - extra Cost on increased Establishment Cost including Overheads, Salary of Regular and Contractual Staff, Inspection Vehicle hire Charges, etc. due to prolongation of contract - extra cost due to extension of CAR and WC Insurance Policy - Loss of Profit because of prolongation of contract - Extra cost due to depreciation due to prolongation of contract period - additional cost due to use of 04 bolt fastening system for radius beyond 700 mt - abnormal increase in quantity of track fastenings - Additional GST burden - HELD THAT:- AT rejected the claims by observing that the BOQ specified in the Contract was not based on number of bolts to be used but on the radius of the curve. AT also observed that the Contractor was unable to convince that the increase in number of bolts was due to the new design that the DMRC required the Contractor to follow. According to the AT, the DMRC’s insistence on following ETAG001 (European Guideline) was never objected to by the Contractor at the time of design change suggested by the DMRC or that the same was not required. AT has further observed that even before the AT, the Contractor was unable to link the design change to the requirement of conformity with the European standard and the increase in the number of bolts.
Even otherwise, it is seen that in terms of Clause 5.1 of the Contract, the Contractor was responsible for submitting the design in accordance with Clause 6.3.2 of the Contract, which was subject to DMRC’s approval. Design was submitted by the Contractor on 03.06.2015 and the same was found to be deficient by DMRC which was conveyed to the Contractor vide its letter dated 08.06.2015. It is observed by AT in the award that the Contractor did not challenge DMRC’s comments on the design submitted by it and on its own re-submitted a new bolt calculation on 19.09.2015 - the rates quoted in Item 8 of the BOQ are for quantities that are measured in metre length of the track of various radii. The quantities of individual items of the track fitting system was neither sought for by DMRC in the BOQ nor quoted by the Contractor when they submitted their rates. It would not have been possible for the AT to order variation in quantities on account of increase in the number of bolts installed, due to the design change, as was claimed by the Contractor, since, the same may have been contrary to the BOQ. In any case, the AT has dealt with the claim in a judicial manner, referring to the contract provisions and the evidence produced by the parties.
Reimbursement of increased GST - HELD THAT:- AT allowed claim to the extent of 1.40% on account of the concession initially agreed to by DMRC. In the considered opinion of this Court, the AT had rightly relied upon the aforesaid clause which restricted the Contractor from seeking any adjustment in the Contract price either on the increase or decrease in cost as a consequence of change in tax duties/levies. In this regard, it is pertinent to note that AT also noted that the Contractor failed to provide any substantiation on the amount of input credit availed by it. This contention is rejected accordingly.
Petition dismissed.
-
2023 (10) TMI 383
Dishonour of Cheque - application preferred by the respondent / complainant under Section 311 for re-examination of the complainant has been allowed - validity of new documents filed for examination - HELD THAT:- From perusal of the impugned order passed by the trial Court, it appears that after completion of the trial, the respondent / complainant has obtained certain new documents, which relates to the Proprietorship of the petitioner / accused Firm. It is also alleged that letter of authority has also been issued in favour of the petitioner / accused. Therefore, in view of the new documents filed by the respondent re-examination of the petitioner / accused is just and proper.
The scope and object of Section 311 of Cr.P.C. is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. It is also notable that such power must be exercised judiciously and not capriciously or arbitrarily, therefore, it is not a case of lacuna.
Hon'ble the apex Court in the case of RAJENDRA PRASAD VERSUS THE NARCOTIC CELL THROUGH ITS OFFICER IN CHARGE, DELHI [1999 (7) TMI 707 - SUPREME COURT] where it was held that We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered latches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision.
On cumulative consideration of the facts of the present case, this Court is of the view that the impugned order of the trial Court does not suffer from any legal infirmity, which may be called for any interference, therefore, present petition filed under Section 482 of Cr.P.C. is hereby dismissed.
Petition dismissed.
-
2023 (10) TMI 382
Dishonour of Cheque - funds insufficient - compounding of offence - compromise of matter reached at - HELD THAT:- Having taken note of the fact that during the pendency of the instant petition the complainant-Bank and the petitioner-accused have compromised the matter and now the complainant-Bank does not intend to pursue the complaint under Section 138 of the NI Act and the complainant-Bank has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accused-petitioner 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 since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.
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 compromised the matter with the complainant-Bank and the complainant-Bank has no objection in case the judgment of conviction, dated 23.02.2022, and order of sentence, dated 25.02.2022, passed by the learned Chief Judicial Magistrate Mandi, District Mandi, H.P., and affirmed by the learned Sessions Judge, Mandi, District Mandi, H.P., are quashed and set-aside, 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 impugned judgment of conviction, judgment of conviction, and order of sentence passed by the learned Chief Judicial Magistrate Mandi, District Mandi, H.P. and affirmed by the learned Sessions Judge, Mandi, District Mandi, H.P. is quashed and set-aside - Petition disposed off.
-
2023 (10) TMI 380
Appointment to the post of Income Tax Inspectors - notice issued by the Income Tax Department, Kerala for recruitment of meritorious sports persons against sports quota vacancies for the year 2016-2017 - HELD THAT:- Sports persons who are already employed in Central Government or State Government or PSU, under the advertisement issued on 10.08.2016 are required to furnish NOC form the present employer and such NOC is to be enclosed with the application.
Admittedly, the petitioner satisfies the qualification prescribed for recruitment against the sports quota vacancies. She secured 4th rank in the recruitment examination. However, she was denied appointment only on the ground that she failed to enclose the NOC from her employer (Central Railways) along with her application.
As learned Senior Counsel would firstly submit that Clause 12 of the advertisement, does not specifically refer to NOC to be furnished by applicants employed with the Railways. In any case, the Counsel would point out that the Central Railways has issued the NOC for the petitioner on 28.05.2018 and the same is marked as Annexure P-19 with the additional document filed by the petitioner.
As submitted that the recruiting Department should consider the petitioner for appointment against the sports quota vacancy by virtue of eligibility and merit position. It is further pointed out that a vacancy of ITO/Tax Assistant continues to exist as one of the selectees had not joined and the petitioner can be accommodated in the said vacancy.
To receive instruction on the above submission on whether the petitioner can be accommodated on the strength of the current employer’s NOC dated 28.05.2018, Mr. Arijit Prasad, learned Senior Counsel prays for time.The matter be listed after two weeks.
-
2023 (10) TMI 345
Dishonour of Cheque - insufficient funds - settlement of matter done between parties - compounding of offence - imposition of compounding fee - HELD THAT:- Having taken note of the fact that the parties have settled the matter and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accused-petitioner 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 since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.
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 compromised the matter with the complainant, as per the compromise deed, dated 29.09.2023, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court - the parties are permitted to get the matter compounded in light of the compromise arrived inter se them.
The present matter is ordered to be compounded and the impugned judgment of conviction is quashed and set aside - the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act.
Imposition of Compounding fee - HELD THAT:- Undisputedly, the total amount of cheque is Rs.1,60,000/-, however, the learned counsel for the petitioner submitted that the petitioner is a poor person and the imposition of compounding fee may be reduced - In case K. Subramanian vs. R. Rajathi [2009 (11) TMI 1013 - SUPREME COURT], the Hon’ble Apex Court had issued the guidelines with respect to the imposition of compounding fee held that The competent court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end.
Therefore, taking into consideration the law laid down by the Hon’ble Apex Court 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.8,000/- i.e., 5% of the cheque amount, only with the State Legal Services Authority, Shimla, H.P., within four weeks from today.
Petition disposed off.
-
2023 (10) TMI 313
Dishonour of Cheque - insufficient funds - settlement of matter done between parties - compounding of offence - imposition of compounding fee - HELD THAT:- Having taken note of the fact that the parties have settled the matter and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accused-petitioner 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 since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.
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 compromised the matter with the complainant, as per the compromise deed, dated 09.03.2023, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court. - the parties are permitted to get the matter compounded in light of the compromise arrived inter se them.
The present matter is ordered to be compounded and the impugned judgment of conviction is quashed and set aside - the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act.
Imposition of Compounding fee - HELD THAT:- Undisputedly, the total amount of cheque is Rs.4,57,000/-, however, the learned counsel for the petitioner submitted that the petitioner is a poor person and the imposition of compounding fee may be reduced - In case K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT], the Hon’ble Apex Court had issued the guidelines with respect to the imposition of compounding fee held that The competent court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end.
Therefore, taking into consideration the law laid down by the Hon’ble Apex Court 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. 20,000/- (rupees twenty thousand), only with the H.P. State Legal Services Authority, Shimla, within four weeks from today.
Petition disposed off.
-
2023 (10) TMI 220
Validity of assessment order passed in terms of Section 3 of the provisions of Water (Prevention and Control of Pollution) Cess Act, 1977 - no opportunity of hearing was granted - principles of natural justice - HELD THAT:- The assessment orders do not indicate any opportunity of hearing being granted to the petitioner. The assessment orders are also bad in law as the same does not record any reason whatsoever in determining the quantum of cess against the petitioner. In the Act and the provisions, although there is no specific provision for opportunity of hearing prior to passing of the assessment orders, it is fairly well settled that any order more so which is expropriatory in nature has to adhere to the principle of natural justice, even if not specifically provided as also explained by the Supreme Court in the case of M/S. DHARAMPAL SATYAPAL LTD. VERSUS DEPUTY COMMISSIONER OF CENTRAL EXCISE, GAUHATI & OTHERS [2015 (5) TMI 500 - SUPREME COURT]. Thus on the face of the assessment orders, there is a violation of principle of natural justice.
The submission of the counsel for the respondent that the appeal provided under Section 13 of the 1977 Act, in fact is a post decisional hearing cannot be accepted for the sole reason that Section 13 of the Act by the very word used in the statute is an appeal against an order of assessment and cannot be termed as post decisional hearing as is argued by the counsel for the respondent.
The assessment orders have been passed in violation of principle of natural justice and are also an unreasoned order, cannot be sustained and thus on that limited ground the assessment orders as well as the appellate order are quashed - Petition disposed off.
-
2023 (10) TMI 219
Dishonour of Cheque - insufficient of funds - burden of proof lies on the petitioner but he failed to prove his case - rebuttal of presumption - HELD THAT:- The presumption under Section 139 of Negotiable Instruments Act is rebuttable presumption and if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Further the burden was heavily upon the claimant to have showed that he had required funds for having advance money to the accused. In the case on hand, the accused admitted the signature found in the cheque and issuance of cheque but the contention of the petitioner is that he already repaid the amount but the said repayment was not proved by the petitioner.
The issue in the case of Tedhi Singh v. Narayan Dass Mahant [2022 (3) TMI 797 - SUPREME COURT] and John K. Abraham v. Simon C.Abraham and another [2014 (1) TMI 528 - SUPREME COURT], are not applicable in the facts of the present case.
On careful reading of the judgment, it is clear that once the accused admitted the issuance of cheque or signature found in the cheque, the presumption under Section 139 of Negotiable Instruments Act would operate and the burden was on the accused to disprove the cheque or existence of legally enforceable debt - in the case on hand also, the accused admitted the issuance of cheque, signature of cheque and thereby, he has to disprove the cheque and his liability but he failed to prove the same. Thereby, the aforesaid case law will squarely applicable to the present facts of the case.
In this case, the oral and documentary evidences and witnesses clearly established the case of the complainant and the defence theory put forth by the accused was not proved and thereby, the trial Court as well as the appellate Court came to the fair conclusion and convicted the petitioner/accused for the offence under Section 138 of Negotiable Instruments Act. There is no infirmity found in the judgment of the Courts below and thereby this Court warrants no interference.
The Criminal Revision Petition is dismissed.
-
2023 (10) TMI 156
Extension of time limit - Seeking directions to Union Bank of India (original Appellant) to issue Sale letter in favour of the Applicant - whether the extension of time sought by the Applicant in the successive applications was permissible in the eye of law? - whether the Applicant had in fact complied with the orders passed by the Court from time to time in the said applications?
HELD THAT:- It is well settled proposition of law that when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or not at all, and other methods of performance are necessarily forbidden.
In the instant case, out of the total bid amount of Rs.65.62 Crores finalized on the date of auction sale i.e., 11.11.2019, the Applicant had deposited an amount of Rs.31,20,50,000/- (Rupees Thirty-One Crores Twenty Lakhs Fifty Thousand) only with the bank and was required to deposit the balance amount with the authorized officer of the bank on or before the fifteenth day of the confirmation of sale of the subject property i.e., on or before 26.11.2019 as per Rule 9(4) of the said Rules. However, this Court while disposing of the said Civil Appeals in UNION BANK OF INDIA VERSUS RAJAT INFRASTRUCTURE PVT. LTD. & ORS. [2020 (3) TMI 76 - SUPREME COURT] permitted the Respondent No.6 (Applicant herein) to deposit the balance of sale amount till 20.03.2020 - the Applicant did not deposit the balance sale amount on or before 20.03.2020. Thereafter, the Applicant projecting the cause of Covid-19, sought extension of time for payment of the balance sale price by filing the M.A. No.894 of 2020. The court in UNION BANK OF INDIA VERSUS RAJAT INFRASTRUCTURE PVT. LTD. & ORS. [2020 (3) TMI 76 - SUPREME COURT], extended the date upto 30.04.2020, clarifying that no further extension shall be granted.
The extension of time granted by the court vide the order dated 12.05.2020, which was selflimiting, had lapsed or expired at least by 30.04.2022 as per the version of the Appellant Bank. Thereafter, there was no order passed by the court specifically extending the time limit. Significantly, there is no clarification made by the Applicant M/s. Sunview Assets Pvt. Ltd., as to how the deposit of Rs.34,41,50,000/- on 22.07.2022 and the deposit of Rs.7,17,02,859.45/- on 26.08.2022 made with the Appellant Bank were in due compliance of the orders passed by the Court from time to time and particularly of the order dated 12.05.2020.
The submission of the Applicant that this Court should treat the deposits made by the Applicant on 22.07.2022 and on 26.08.2022 as due compliance of the order dated 12.05.2020, extending the time limit by exercising the inherent powers of the Supreme Court under Article 142 of the Constitution of India or exercising the powers conferred on the court under Section 148 of the Civil Procedure Code, cannot be accepted in view of the statutory provision contained in Rule 9 of the said Rules - The plenary powers of the Supreme Court under Article 142 are inherent in nature and are complementary to those powers which are specifically conferred on the court by various statutes. These powers though are of a very wide amplitude to do complete justice between the parties, cannot be used to supplant the substantive law applicable to the case or to the cause under consideration of the court.
There is nothing on record to suggest as to whether the Respondent No.1 – Rajat Infrastructure Pvt. Ltd. and Others had preferred any appeal before the DRAT in view of the order passed in UNION BANK OF INDIA VERSUS RAJAT INFRASTRUCTURE PVT. LTD. & ORS. [2020 (3) TMI 76 - SUPREME COURT], and if preferred whether the same is pending or not. There is also no clarity about the final outcome of the main Security Application preferred by the Respondent No.1 Rajat Infrastructure Pvt. Ltd. and Others before the DRT.
The instant Miscellaneous Application being not maintainable cannot be entertained and deserves to be dismissed - Application dismissed.
-
2023 (10) TMI 154
Charging Lease transfer fee - Amalgamation of company - Claim of transfer fees by the respondent no.1 - petitioners submits that the stipulation of taking prior approval before entering into a scheme of amalgamation is neither a pre-condition nor is mandatory, inasmuch as no penal consequence is specified for non-compliance of the same - HELD THAT:- In the present case, nothing has been produced by the respondents to rebut the contention of the petitioners that the companies among which there was an amalgamation of the petitioners are “group companies” of the petitioner no.1. The annexures to the writ petition indicate that the shareholding and Board of Directors were common between the said companies. Hence, the amalgamation of the petitioner no.1 squarely comes within the exception clause carved out of “transfer” as per the General Policy of the respondent no.1 itself.
The respondent no.1 is not entitled to claim transfer charges, as applicable to other entities, in case of the petitioners. Only the processing fee of Rs.10,000/- can be claimed by the respondent no.1.
Whether such transfer is between entities identical on point of shareholding and directorship, thus coming within the exclusion contemplated in the General Policy and minutes of meeting of the WBSIDCL itself, as annexed to the opposition of the WBSIDCL - an amalgamation of the lessee within its group companies is not considered as transfer for the purpose of charging transfer fees under the said policy of the WBSIDCL.
This Court is of the opinion that the respondent no.1 acted de hors its own General Policy and meeting resolutions in claiming full transfer fees from the petitioners by treating the amalgamation between the petitioners no.1 and its companies as a “transfer” within the contemplation of the General Policy of the respondent no.1, although it falls within the exception clause thereof.
Petition allowed.
-
2023 (10) TMI 153
Dishonour of Cheque - insufficient funds - amicable settlement of dues - compounding of offence - HELD THAT:- Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has amicably settled the matter with the complainant-respondent before the learned Mediator and as per the settlement the complainant-respondent has abandoned and relinquished all his rights and entitlements in respect of the cheque in question forming subject matter of the proceedings under Section 138 of the NI Act, the instant prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court in K. Subramanian Vs. R. Rajathi [2009 (11) TMI 1013 - SUPREME COURT].
In view of the detailed discussion made hereinabove as well as law laid down by the Hon’ble Apex Court, the present matter is ordered to be compounded, as per the terms and conditions, recorded by the learned Mediator and reproduced hereinabove. Accordingly, judgment of conviction, dated 31.05.2017, and order of sentence dated 02.06.2017, passed by the learned Judicial Magistrate First Class, Karsog, District Mandi, H.P., in Complaint No. 83 of 2014, and affirmed by the learned Additional Sessions Judge-I, Mandi, District Mandi, H.P., vide judgment dated 12.08.2022, in Criminal Appeal No. 51 of 2017, are 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 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.5000/- (rupees three thousand) only with the H.P. State Legal Services Authority Shimla, H.P., within four weeks from today.
Petition disposed off.
-
2023 (10) TMI 48
Right of the auction purchaser of the property - Right of the Defaulter of Loan / Borrowers to redeem the secured property - Exercise of writ jurisdiction under Article 226 of the constitution - alternative remedy available to the Borrowers had already been availed of - confirmation of sale by the Bank under Rule 9(2) of the Rules of 2002 invests the successful auction purchaser with a vested right or not - impact of the amended Section 13(8) of the SARFAESI Act on the Borrowers’ right of redemption in an auction conducted under the SARFAESI Act - withholding of sale certificate under Rule 9(6) of the Rules of 2002 and enter into a private arrangement with a borrower - applicability of equitable considerations to override the outcome contemplated by the statutory auction process prescribed by the SARFAESI Act - right of redemption of mortgage stood extinguished upon publication of notice of auction or not - decisions of Telangana High Court in the case of CONCERN READYMIX AND ORS. VERSUS THE AUTHORISED OFFICER, CORPORATION BANK AND ORS. [2018 (12) TMI 1982 - TELANGANA HIGH COURT] and AMME SRISAILAM VERSUS UNION BANK OF INDIA AND ORS. [2022 (8) TMI 1440 - TELANGANA HIGH COURT] lay down the correct position of law or not.
HELD THAT:- The conclusion is summarised as below:
(i) The High Court was not justified in exercising its writ jurisdiction under Article 226 of the Constitution more particularly when the borrowers had already availed the alternative remedy available to them under Section 17 of the SARFAESI Act.
(ii) The confirmation of sale by the Bank under Rule 9(2) of the Rules of 2002 invests the successful auction purchaser with a vested right to obtain a certificate of sale of the immovable property in form given in appendix (V) to the Rules i.e., in accordance with Rule 9(6) of the SARFAESI.
(iii) In accordance with the unamended Section 13(8) of the SARFAESI Act, the right of the borrower to redeem the secured asset was available till the sale or transfer of such secured asset. In other words, the borrower’s right of redemption did not stand terminated on the date of the auction sale of the secured asset itself and remained alive till the transfer was completed in favour of the auction purchaser, by registration of the sale certificate and delivery of possession of the secured asset. However, the amended provisions of Section 13(8) of the SARFAESI Act, make it clear that the right of the borrower to redeem the secured asset stands extinguished thereunder on the very date of publication of the notice for public auction under Rule 9(1) of the Rules of 2002. In effect, the right of redemption available to the borrower under the present statutory regime is drastically curtailed and would be available only till the date of publication of the notice under Rule 9(1) of the Rules of 2002 and not till the completion of the sale or transfer of the secured asset in favour of the auction purchaser.
(iv) The Bank after having confirmed the sale under Rule 9(2) of the Rules of 2002 could not have withhold the sale certificate under Rule 9(6) of the Rules of 2002 and enter into a private arrangement with a borrower.
(v) The High Court under Article 226 of the Constitution could not have applied equitable considerations to overreach the outcome contemplated by the statutory auction process prescribed under the SARFAESI Act.
(vi) The two decisions of the Telangana High Court in the case of Concern Readymix and Amme Srisailam do not lay down the correct position of law. In the same way, the decision of the Punjab and Haryana High Court in the case of Pal Alloys [2021 (12) TMI 1462 - PUNJAB AND HARYANA HIGH COURT] also does not lay down the correction position of law.
The Telangana High Court in Concern Readymix (supra), examined the amended Section 13(8) of the SARFAESI Act, & held that the same only restricts the right of the secured creditor and not the borrowers right of redemption, which will continue to exist until the execution of the conveyance.
(vii) The decision of the Andhra Pradesh High Court in Sri Sai Annadhatha Polymers [2018 (6) TMI 1840 - ANDHRA PRADESH HIGH COURT] and the decision of the Telangana High Court in the case of K.V.V. Prasad Rao Gupta [2021 (2) TMI 1361 - TELANGANA HIGH COURT] lay down the correct position of law while interpreting the amended Section 13(8) of the SARFAESI Act.
The true purport and scope of the amended Section 13(8) of the SARFAESI Act was looked into by the Andhra Pradesh High Court in Sri. Sai Annadhatha Polymers & Anr. v. Canara Bank rep. by its Branch Manager, Mandanapalle. The court took the view that in accordance with the unamended Section 13(8) of the SARFAESI Act, the right of the borrower to redeem the secured asset was available till the sale or transfer of such secured asset. The court went on to say that the amended provisions of Section 13(8) of the SARFAESI Act brought in a radical change inasmuch as the right of the borrower to redeem the secured asset would stand extinguished thereunder on the very date of publication of the notice for public auction under Rule 9(1) of the Rules of 2002.
The amended Section 13(8) of the SARFAESI Act was also looked into by the High Court of Telangana in the case of K.V.V. Prasad Rao Gupta v. State Bank of India [2021 (2) TMI 1361 - TELANGANA HIGH COURT] and relying on the decision of the Andhra Pradesh High Court in the case of Sri. Sai Annadhatha Polymers, the court observed under Rule 8(6) of the Rules of 2002, the petitioners are entitled for a thirty day notice period enabling them to clear the loan and to redeem the property as envisaged under Section 13(8) of the SARFAESI Act, and that if they fail to repay the amount within the stipulated period, after expiry of said period of 30 days, the secured creditor is entitled to issue publication of sale notice under Rule 9(1), and that on publication of such notice, the right of the borrower to redeem the property stands extinguished.
Appeal allowed.
-
2023 (10) TMI 47
Dishonour of Cheque - misuse of blank cheque - rebuttal of presumption - cheque signed under coercion or not - HELD THAT:- In the instant case, the Complainant has duly proved his cheque and legal notice & the accused/applicant also admitted his signature and bank account and he has not rebutted the fact and also failed to proved that at the time of signing the cheque, he was suffering from mental disease. Thus, the learned trial Court and the learned Appellate Court, after appreciating the oral and documentary evidence, have rightly convicted the accused/applicant under Section 138 of N.I. Act.
That apart, it is settled position of law that the scope of interference in exercise of revisional powers of the High Court is quite limited inasmuch as it has to only verify that whether there is any material irregularity and/or illegality coupled with arbitrariness or perverseness in the impugned order or not. In the present case, no such circumstance is there warranting interference by this Court.
The criminal revision preferred by the applicant is bereft of any substance and, therefore, the same is liable to be set aside - revision dismissed.
-
2023 (10) TMI 46
Dishonour of cheque - acquittal of accused - insufficient funds - rebuttal of presumption under Section 139 of N.I. Act - HELD THAT:- In the case in hand, the learned Trial Court did not appreciate this fact that the respondent did not deny the signature over the cheques of his account and the appellant proved this fact that the cheques were given by the respondent which were dishonored at the bank and despite receiving notice, the respondent did not pay the cheque amount. The respondent did not rebut these facts and documents filed by the appellant and in the statement of the respondent/accused, he admitted his signature over cheques of his account, as such presumption is in favour of the appellant under Section 139 of the NI Act. Therefore, the finding recorded by the Trial Court is not in accordance with law.
In the case of NI Act, the complainant has only to prove the fact that the cheque in question was issued by the accused in discharge of any debt or liability to the complainant and under Section 139 of the Act, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 of the Act for discharge, in whole or in part, or any debt or other liability - the finding recorded by the learned Trial Court is not in accordance with the law, as such the impugned judgment being not sustainable in law is liable to be set aside.
The impugned judgment passed by the learned Trial Court dated 23.10.2018 is hereby set aside - the acquittal appeal is allowed.
-
2023 (10) TMI 45
Dishonour of Cheque - insufficient funds - Authorised signatory to sign the cheque - liability of drawer of cheque - HELD THAT:- This Court finds that the two cheques, which have come on record at Exhibit 22 and 23 goes to indicate that “Rameshkumar N. Agraval” has signed these cheques as Authorized Signatory of the Company namely Apar Steel and Casting Pvt. Ltd. Co. Thus, it has come on record that he is the authorized person in conduct of business of Apar Steel and Casting Pvt. Ltd. Co. Aforesaid cheques are dated 02.05.2015 and 15.04.2015, whereas the disputed cheque, which is placed on record vide Exhibit 8 is signed by “Rameshkumar N. Agraval” in his individual capacity is dated 25.03.2016.
In case of MAINUDDIN ABDUL SATTAR SHAIKH VERSUS VIJAY D. SALVI [2015 (8) TMI 907 - SUPREME COURT], the Hon’ble Supreme Court inter alia held that from a bare reading of Section 138 of the NI Act the essential ingredient to attract the liability is that a person who is made liable should be drawer of the cheque and should have drawn the cheque on account maintained by him with the banker, for the payment of any amount of money to any person from out of that account, for discharge in whole or part of any debt or other liability. Thus, in the context of aforesaid provisions as well as the principle laid down, a person who draws a cheque on account maintained by him for paying to the payee is alone liable for the offence under Section 138 of the NI Act.
In the facts of the case, prima facie, this Court in present appeal would like to examine the aforesaid aspect in context of the two cheques, which has been brought on record vide Exhibit 22 and 23. Hence, this application requires consideration - Leave to appeal is granted.
-
2023 (10) TMI 3
Dishonour of Cheque - insufficient funds - compounding of offence - Section 138 of the NI Act - HELD THAT:- Having settled the matter and the loan account of the petitioner-accused has been closed under the One Time Settlement (OTS) Scheme and the complainant-Bank has no objection in case the judgment of conviction, dated 17.05.2022, and the order of sentence dated 18.05.2022, passed by the learned Judicial Magistrate First Class, Barsar, District Hamirpur, H.P., in Complaint No. 16-I-2016, is quashed and set-aside, therefore, this Court sees no impediment in accepting the prayer made on behalf of the 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 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’. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded.
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 settled the matter with the complainant-Bank under the One Time Settlement scheme, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court - the parties are permitted to get the matter compounded in light of the fact that the parties have settled the dispute amicably under One Time Settlement scheme.
The present matter is ordered to be compounded and the impugned judgment of conviction, dated 17.05.2022, and order of sentence, dated 18.05.2022, passed by the learned Judicial Magistrate First Class, Barsar, District Hamirpur, H.P., in Complaint No. 16-I-2016, are quashed and set-aside and the petitioner-accused is acquitted of the charge framed against her under Section 138 of the Act. Bail bonds, if any, stand discharged.
Petition disposed off.
-
2023 (10) TMI 2
Dishonour of Cheque - insufficient funds - legally enforceable debt or not - scope and purport of the revisional jurisdiction under Secs.397 to 401 of the Cr.P.C. - quantum of sentence - HELD THAT:- There is a profusion of precedential authority that the revisional power of this Court is to be sparingly exercised and in exceptional rarity. The power is more in the nature of supervisory jurisdiction, to correct the miscarriage of justice, if any found. The revisional power cannot be equated with Appellate/Second Appellate power. Even if a different view is possible, the revisional Court shall not substitute the view taken by the Trial/Appellate Court, unless and until there is patent illegality, which is shocking to the conscience of the Court.
The revision petitioner’s pivotal defence was that he had not borrowed any amount from the first respondent. Instead, it was their common friend one Binukumar, who borrowed an amount of Rs.50,000/- from the first respondent, and in discharge of the said debt, the revision petitioner had issued Ext.P1 cheque. Ext.D1 agreement purportedly executed between the revision petitioner, first respondent and Binukumar, establishes this aspect. Hence, the prosecution initiated against the revision petitioner is bad - revision petitioner does not dispute the execution and the issuance of Ext.P1 cheque. His defence is that, as per Ext.D1 agreement, Binukumar was paid only Rs.50,000/- by the first respondent.
There is no illegality or impropriety in the concurrent findings of the courts below, which establish that the revision petitioner had issued Ext.P1 cheque in discharge of a legally enforceable debt and has failed to shift the reverse onus of proof under Section 139 of the N.I.Act.
Quantum of sentence - HELD THAT:- The Trial Court had sentenced the revision petitioner to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.2,00,000/-. The Appellate Court modified the sentence by directing the revision petitioner to undergo simple imprisonment for a period of 15 days and to pay a compensation of Rs.2,75,000/- and on default to undergo simple imprisonment for a further period of 2 ½ months.
The Hon’ble Supreme Court has in a plethora of precedents held that Section 138 of the N.I. Act is more civil in nature, and the intention of the legislature is to provide the drawer of the cheque an opportunity to pay the debt, rather than incarcerating the accused in prison because it would serve no fruitful purpose, especially to the complainant. Therefore, the substantive sentence can always be limited to a minimum period, with an order to pay fine, and out of which the complainant can be paid compensation.
The sentence modified by reducing it from 15 days to one day (till the rising of the court) and directing the revision petitioner to pay a compensation of Rs.3,00,000/- to the first respondent and in default to undergo simple imprisonment for a period of six months - revision petition is allowed in part.
-
2023 (10) TMI 1
Dishonour of Cheque - section 143(A) Negotiable Instrument Act - HELD THAT:- From perusal of Section 143(A), it is evident that Court trying an offence under section 138 of the Negotiable Instruments Act may order the drawer of the cheque to pay interim compensation to the complainant (a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and (b) in any other case, upon framing of charge. (2) The interim compensation under sub-section (1) shall not exceed 20% of the amount of the cheque. (3) The interim compensation shall be paid within 60 days from the date of the order under sub-section (1), or within such further period not exceeding 30 days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque.
From perusal of order dated 31.05.2023, the Court has assigned reasons for granting interim compensation to opposite party no.2 as application under section 138 Negotiable Instrument Act is pending since last two years and further observed that on account of dismissal of the complaint, complainant shall return the amount with 7% interest to applicant/accused - there are no illegality in the order dated 31.05.2023 passed by the prescribed authority.
Present application dismissed.
............
|
9911796707
