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Indian Laws - Case Laws
Showing 801 to 820 of 26767 Records
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2023 (9) TMI 348
Dishonour of Cheque - insufficient funds - compounding of offence - HELD THAT:- Having taken note of the fact that the entire amount of compensation, i.e., Rs.45,000/-, as awarded by the learned Trial Court, has been received by the complainant-respondent 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 that Any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate’s Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority.
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 already paid the entire amount of compensation to the complainant-respondent, 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 compounding fee in the sum of Rs.2250/- has already been deposited by the petitioner before H.P. State Legal Services Authority, as per the directions of this Court.
The present matter is ordered to be compounded and the impugned judgment of conviction and order of sentence dated 24.09.2018, passed by the learned Judicial Magistrate First Class, Court No. 2, Paonta Sahib, District Sirmaur, H.P. is quashed and set-aside and the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act. Bail bonds, if any, stand discharged - Petition disposed off.
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2023 (9) TMI 347
Dishonour of Cheque - insufficient funds - compounding of offence exercising power under Section 147 of NI Act - HELD THAT:- Having taken note of the fact that the entire amount of compensation, i.e., Rs.80,000/-, as awarded by the learned Trial Court, has been paid by the petitioner- accused to the complainant 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 paid the entire amount of compensation to the complainant, 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 and order of sentence, dated 27.01.2017, passed by the learned Judicial Magistrate First Class, Baijnath, District Kangra, H.P., in Criminal Complaint No. 41-III/14, and affirmed by learned Additional Sessions Judge-III, Kangra at Dharamshala, camp at Baijnath, H.P., vide judgment dated 13.11.2018, are quashed and set-aside and the petitioneraccused is acquitted of the charge framed against him under Section 138 of the Act - Petition disposed off.
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2023 (9) TMI 346
Dishonour of Cheque - compounding of offences - petitioner-accused acquitted of the charge framed against her under Section 138 of the NI Act - HELD THAT:- Having taken note of the fact that out of Rs.4,00,000/-, which is the entire amount of compensation awarded by the learned Trial Court, the complainant- respondent has already received Rs.3,33,000/- and balance amount has been deposited by the petitioner-accused before the learned Trial Court 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, out of awarded compensation amount of Rs.4,00,000/-, has already paid Rs.3,33,000/- to the complainant-respondent and deposited balance amount of Rs.67,000/- before the learned Trial Court, which the complainant-respondent may get released, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon'ble Apex Court - in view of the detailed discussion made hereinabove as well as law laid down 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 and order of sentence passed by the learned Judicial Magistrate 1st Class, Court No. 7, Shimla, H.P., in Case No. 37-3 of 2014, and affirmed by learned Additional Sessions Judge-I, Shimla, H.P., vide judgment dated 30.04.2022, in Criminal Appeal No. 4-S/10 of 2019, 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.
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2023 (9) TMI 345
Violation of principles of natural justice - whether a party without any adverse interest be permitted to cross-examine the witness? - suit for partition - HELD THAT:- The defendant may cross-examine the co-defendant or any other witness, who has given evidence against him and a reply on such evidence though there is no joint issue between them. In this case, the third defendant being the co-defendant of the fourth defendant has not given anything against the fourth defendant in her proof affidavit in examination-in-chief. No doubt when there is no clash of interest between the third and fourth defendants and nothing has been said as against the fourth defendant by the third defendant, there cannot be any statutory right of cross-examination of the third defendant by the fourth defendant.
As per Section 138 of the Indian Evidence Act, 1872 only an 'adverse party' can cross-examine the other parties. Being co-defendants admittedly the fourth respondent husband is not an 'adverse party' to the third defendant wife. Hence, the impugned order passed by the learned I Additional District Judge (PCR), Thanjavur dated 04.09.2015 is in order and it is not necessary to interfere with the order passed by the learned I Additional District Judge (PCR), Thanjavur.
The learned I Additional District Judge (PCR), Thanjavur is directed to dispose of O.S.No.172 of 2010 as expeditiously as possible within a period of three (3) months from the date of receipt of the copy of this order - this Civil Revision Petition stands dismissed.
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2023 (9) TMI 171
Interpretation of statute - disposal of an application under Section 33 of Arbitration and Conciliation Act, 1996 would be the starting point for limitation or not - HELD THAT:- Once the arbitral award has been amended or corrected, it is the corrected award which has to be challenged and not the original award. The original award stands modified, and the corrected award must be challenged by filing objections.
In the present case, the objections/application for setting aside the arbitral award were filed on 03.08.2018, which is within a period of ninety days from the date of the corrected award. Hence, the High Court was right in holding that the objections were filed within the limitation period. Even otherwise, the Court has the power to condone the delay for further period of thirty days. Application for condonation of delay can be filed at anytime till the proceedings are pending. Of course, exercise of discretion and whether or not the delay should be condoned is a different matter.
There are no good ground and reason to interfere with the impugned judgment - SLP dismissed.
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2023 (9) TMI 170
Constitutionality of transfer notification - Transfer of Joint Commissioner of state tax - Petitioner assailed his transfer order before the then Himachal Pradesh Administrative Tribunal, however, in the meanwhile his transfer order was cancelled and petitioner was allowed to continue as AETC Sirmaur at Nahan - huge tax evasion - HELD THAT:- Petitioner is Class-I Gazetted Officer. As a matter of fact, petitioner has remained posted at Parwanoo since December, 2020. There is no gainsaying that the transfer is an incidence of service. The employer has unfettered power to effect transfer save and except for extraneous reasons. A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or the other.
In the case in hand, the petitioner has made an attempt to show that the reasons for his transfer from Parwanoo to Shimla are not bonafide. Reliance has been placed on the order passed by the Company Court in Co. Pet. No. 13 of 2014, whereby the petitioner was authorised to conduct the sale of assets of wound-up company named M/s Indian Technomac Pvt. Ltd. It has also been propagated that the petitioner had detected the invasion of huge amount of taxes by M/s Indian Technomac Pvt Ltd. Company and it was for such reason that he was repeatedly posted at Nahan, Paonta Sahib or Parwanoo - the case of the petitioner is that the official respondents have some hidden purpose to see that the petitioner does not remain involved in the matter of M/s Indian Technomac Pvt. Ltd. Company - It is more than settled that the allegations of malafide have to be specifically pleaded and then have to be proved by cogent material.
There is no material on record to infer that there is any motive of the government in transferring the petitioner from Parwanoo to Shimla. Mere fact that the official respondents have passed orders four times to transfer petitioner within a span of last seven years is not sufficient to infer any motive of the employer in doing so, much less a motive which can be termed as oblique or ulterior. Even the transfer policy adopted by the State Government does not reserve any privilege of being not transferred before a minimum period of time for Class I, Gazetted officer(s). Rather, the flipside of the facts as have merged can be the unwillingness of the petitioner himself to be get detached from the affairs of Indian Technomac Limited.
The petitioner has been discharging the duties assigned to him by Hon’ble Company Court for the last about three years, while having his place of posting at Parwanoo. It is noticeable when the petitioner can discharge his duties as assigned to him by the Company Court while sitting at Parwanoo, why cannot he achieve from Shimla. In case of any complaint with respect to lack of facilities, he can always make his request to the authorities and the Company Court as well and in such event, it will be for Hon’ble Company Court to pass appropriate orders in the best interest of adjudication of the lis before it.
The petitioner has not been able to make out a case for himself and in result the petition is dismissed.
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2023 (9) TMI 169
Dishonour of Cheque - insufficient funds - legally recoverable debt or liability or not - complainant failed to submit details of loan outstanding against the accused - rebuttal of presumption - HELD THAT:- The High Court, in revision, exercises supervisory jurisdiction of a restricted nature. It cannot re-appreciate the evidence, as Second Appellate Court, for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. Recently, in case of MALKEET SINGH GILL VERSUS THE STATE OF CHHATTISGARH [2022 (7) TMI 1455 - SUPREME COURT], the Supreme Court observed There has to be well-founded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.
Accused Manoj Kumar has not challenged receipt of loan amount of Rs.2,60,000/- under the Vehicle Loan Scheme. Rather, in examination of accused under Section 313 of CrPC, he had specifically admitted that he has taken loan of Rs.2,60,000/- from the complainant Bank under Vehicle Loan Scheme. Therefore, learned Trial Court and Appellate Court have not committed mistake in drawing presumption of existence of legally enforceable liability in favour of the holder of cheque i.e., the complainant Bank - The accused has not submitted any evidence to show re-payment of the loan, therefore, nothing is brought on record to rebut the legal presumption under Sections 118 and 139 of Negotiable Instruments Act.
The finding of learned Trial Court and Appellant Court does not suffer any patent illegality or perversity. No interference in the concurrent findings in exercise of revisional jurisdiction is called for. - Petition dismissed.
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2023 (9) TMI 168
Dishonour of Cheque - Amicable settlement of dispute - seeking reduction of the period of sentence already undergone - HELD THAT:- 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.4,700/- 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. Sentence awarded to the applicant is hereby modified by reducing the sentence to the period already undergone.
Revision disposed off.
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2023 (9) TMI 132
Dishonor of Cheque - Counter allegation of deception - Supply of inferior quality of goods - suddenly stopped to supply the goods, which had again caused considerable loss - deposit of some post-dated cheques for encashment beyond the terms and conditions, without intimation - HELD THAT:- Admittedly one criminal prosecution is pending u/s 138 of NI Act against the present complainant. The present complainant initiated the instant criminal compliant with the allegation of cheating and criminal breach of trust. The complainant has adopted a procedure in the form of criminal complaint against a company which have filed a criminal prosecution u/s 138 of NI Act. The way of approaching the court of Magistrate by the complainant company appears to be the counter blast of the criminal prosecution u/s 138 of NI Act - ends of justice cannot be arrived at between the parties under the fear of the process of the court. The private companies are regularly filing mischievous complaint before the court of Magistrate in similar fashions nowadays.
The Hon’ble Supreme court in several occasions has come heavily upon such conduct of the complainant. The Hon’ble Supreme Court in the of State of Hariyana Vs. Bhajanlal [1990 (11) TMI 386 - SUPREME COURT] has specifically observed that if after taking the petition of complaint and evidences therein to be true, the court find no prima facie offence being made out against the accused persons, the High Court is free to quash the proceeding u/s 482 of Cr.P.C.
So considering the entire facts and circumstances of this case and considering the materials on record, there are merits to entertain the criminal revision - impugned Order passed by the Learned Magister is hereby set aside - revision allowed.
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2023 (9) TMI 52
Dishonour of Cheque - insufficient funds - Seeking a judgment and a decree jointly and severally against the defendants as guarantors under the deeds of guarantee dated 21st March 2018 executed by the defendants respectively in favour of the plaintiff - whether the matter could be preceded with ex-parte when during the pendency of the suit, the defendants were adjudged the insolvents?
HELD THAT:- With regard to the Court’s query as to whether the suit can proceed when the Defendant is adjudicated insolvent pending the suit, in view of the Division Bench judgement of this Court in the case of Om Prakash Nihalani [2008 (12) TMI 831 - BOMBAY HIGH COURT], there are no impediment in proceeding to pass a decree. The Division Bench has concurred with the view taken by the Madras High Court in the case of Official Assignee, High Court Madras & Ors. [1980 (2) TMI 287 - MADRAS HIGH COURT]. The Madras High Court held that under Cl.(d) of section 68(1) the official assignee would be a necessary party only if the suit was “relating to the property of the insolvent”, and the term “relating to” cannot be taken to mean “affecting”.
Thus, the Defendant has been adjudicated insolvent pending the proceeding, as it is a money decree and does not “relate to” the property of the defendant section 68(1)(d) is not attracted and the official assignee is not required to be made a necessary party.
Thus, as per Order XXXVII Rule 6 (a) of the Code of Civil Procedure, the plaintiff is entitled to a judgment forthwith - suit disposed off.
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2023 (9) TMI 51
Dishonour of Cheque - legally recoverable debt or other liability or not - mandatory requirements of Sections 138 and 142 of the N.I. Act were not complied with - rebuttal of presumptions.
Whether both the cheques in question were issued for legally recoverable debt or other liability? - HELD THAT:- In view of Section 139 of the N.I. Act, the legal presumption is raised after issuance of the cheque that it was issued for a legally recoverable debt or other liability. Since the complainant had discharged his burden in regard to issuance of the cheque on which the signature has been admitted by the accused himself and the amount is not dispute, therefore, the burden of proof shifts upon the accused to rebut this legal presumption under Section 139 of the N.I. Act to show that the cheque was not issued for any legally recoverable debt or other liability.
In view of the Section 118 of the N.I. Act until the contrary is proved the presumptions shall be made that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
The legal presumption in regard to the issuance of the cheque and also the legally recoverable debt or liability, in view of the evidence adduced on behalf of the complainant to prove the complaint case, the burden of proof which was shifted upon the accused to rebut this presumption of liability of Section 118 and 139 of N.I. Act shifted on the accused but the same has not been discharged at all. The accused has taken the defence under Section 313 Cr.P.C. but has not produced himself in evidence there being no evidence, the compliant case is found proved beyond all reasonable doubt on behalf of the complainant.
The finding recorded by the learned trial court as well as the learned appellate court holding the appellant guilty for the offence under Section 138 N.I. Act is not based on any perversity and both the judgments passed by the trial court and appellate court needs no interference and the same are affirmed. Accordingly, this criminal revision is hereby dismissed.
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2023 (8) TMI 1552
Dishonour of Cheque - prayer to quash the summoning order - no finding recorded regarding filing of complaint against the applicant in connection with bouncing of the cheques upon the applicant although the same was said to be sent on 30.09.2019 - HELD THAT:- This Court finds that the law has been well settled by the judgement Yogendra Pratap Singh vs. Savitri Pandey and Another [2014 (9) TMI 1129 - SUPREME COURT] that the cause of action for filing a complaint case under Section 138 of the N.I Act could not arise prior to expiry of 15 days from the date of service of legal notice on the accused.
This Court finds that in the light of the judgment passed by the Hon'ble Supreme Court in Yogendra Pratap Singh - versus- Savitri Pandey and another, the complaint filed by the complaint is pre-mature as the cause of action for filing the complaint case under Section 138 of the Negotiable Instruments Act, 1881 had not crystalised on 23.10.2019 and accordingly, the complaint itself was pre- mature and hence not maintainable.
Consequently, the condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the applicant could not have been summoned under the said Section. The question of any presumption regarding existing debt under Section 138 of the Negotiable Instruments Act, 1881 also could not arise as the complaint itself was not maintainable.
Accordingly, the present application is hereby allowed.
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2023 (8) TMI 1551
Assailing the Arbitral Award - section 34 of the A&C Act - Validity of claims for escalation cost and prolongation of contract - HELD THAT:- The petitioner’s contention that Contractor never claimed that the endorsement was given under duress, is fallacious as the Contractor in its rejoinder before the AT, clearly outlined the circumstances under which the said endorsement was given. This Court also finds strength in the submission of the learned counsel for Contractor that, only when the petitioner tried to take the benefit of the endorsement in its statement of defence, did the Contractor give explanation in its rejoinder. Whether such an endorsement can be enforced against the claimant to deny its legitimate claims, especially when the impugned Award holds the petitioner guilty of delay, would not require much deliberation.
Issuance of NOC or other similar ‘no claim’ certificate by a party, in favour of another contracting party, by itself does not disentitle the party having a claim from explaining the circumstances in which NOC is issued. Reverse of the same is equally true. There is no absolute rule which outrightly negates the evidentiary value of NOC’s or ‘no claim’ certificate.
In the present case, the AT has opined that the NOC issued by the Contractor was involuntary and hence, cannot be enforced against the Contractor to deny a claim, to which it was otherwise entitled. AT has given a finding of fact in this regard, after examining the circumstances under which NOC was issued by the Contractor. There is nothing patently illegal about such finding. Thus, there is no reason for this court to interfere with this finding.
Petitioner’s second contention that the AT erred in awarding claim on account of prolongation of Contract, as there was no clause in the Contract providing for the same, is also meritless. It is pertinent to note that the Contractor had claimed damages towards the escalation cost, on account of breach of Contract by the petitioner. Admittedly, the Project was completed to the satisfaction of the petitioner, and the delay in execution was attributable to the petitioner. Clause 10C of the Contract provided for increase in cost of materials and labour during the period of extension. The claim was sub-divided into two sub heads i.e., claim on account of increase in wages for labour on prevailing wages as per Clause 10C and claim on account of increase in prices of material. The AT observed that the petitioner had granted extension of time considering the hindrances, and without levy of any compensation, which showed that the delay was attributed to the petitioner.
The AT found the same violative of Section 73 of the Contract Act, which entitles a party to claim compensation for breach of the contract committed by the other contracting party. Even if contract does not provide for price escalation, it would not preclude a party to claim escalation in price, as a measure of damages suffered by it, if the other contracting party is guilty of causing delays in completion of contractual works.
The AT, while considering the contentions raised by the petitioner, came to the conclusion that the endorsement given by Contractor, while seeking extension of time, would not come in its way in seeking escalation cost, especially when the delay was attributable to the petitioner. In the considered opinion of this Court, the view taken by the AT was both possible and plausible, and needs no interference in light of the narrow scope of Section 34 of the A&C Act.
The objections fail and the petition along with pending application is dismissed with no order to costs.
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2023 (8) TMI 1550
Challenge to order of the Head of the Institution in refusing to consider her application for transfer - rejection of transfer application on the ground of "out of 10% - HELD THAT:- The service conditions gives right to claim transfer on fulfillment of certain conditions. An application for transfer has to be considered on the basis of existing and/or prevailing rules. There are no material to reject the said application of the petitioner by the Head of Institution on the ground of “out of 10%” and no sufficient material is produced to justify the said stand. The order of rejection has to be considered on the basis of the reasons mentioned and not on any other extraneous consideration. The argument made that pupil teacher ratio was a relevant factor is not borne out from the impugned order of the Head of the Institution. There cannot be any doubt that in an appropriate situation interest of the student could be the over-riding consideration.
In a given situation it is possible that although a teacher is eligible for transfer an immediate replacement may not be possible and the recruitment process for the said post would take such time the transfer may be given effect to from a future date. However, once a teacher fulfills the eligibility criteria, the authority must take steps to fill up the resultant vacancy as per the norms existing at the relevant point of time by way of local arrangement or by recruiting a permanent teacher for the said post within a reasonable time.
The Commissioner of School Education is directed to consider the application for transfer of the petitioner on verification of the record and production of relevant documents by the school authorities.
The order under challenge is thus, set aside - appeal allowed.
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2023 (8) TMI 1549
Gross abuse of the process of law - making false statements 'On Oath' before this Court - prceedings under Section 340 of Cr.P.C. - Whether or not the present case is barred by the provisions of the Benami Act? - HELD THAT:- The present application, though having been filed under Section 340 of the Cr.P.C., is being treated as an application under Order VII Rule 11 CPC. All the parties have made their submissions with reference to provisions of Order VII Rule 11 CPC dealing with rejection of plaint.
While considering submissions under Order VII Rule 11 CPC, the court only has to see the contents of the plaint in order to gauge whether or not the plaint discloses any cause of action and is not otherwise barred by any law. Defence as may be raised in the written statement or in the arguments for rejection of plaint, are not relevant for adjudication under Order VII Rule 11 CPC. Thus, in the case of Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others [2006 (1) TMI 600 - SUPREME COURT], Supreme Court has held 'A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint.'
Whether or not the present case is barred by the provisions of the Benami Act; or whether or not the plaintiff will or will not have benefit of exceptions as provided in the Benami Act, is an aspect which would have to be decided on the basis of the evidence on record. These are matters of fact which require trial. Disputed questions have been raised on behalf of the parties, which cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. "Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the pliant, without any doubt or dispute shows that the suit is barred by any law in force." In the facts and circumstances of the present case, this question cannot be decided at the stage of the application under Order VII Rule 11 CPC and suit cannot be rejected at the threshold by applying principles of Order VII Rule 11 CPC.
Thus, it is apparent that the question with respect to benami transaction would have to be determined by this Court on the basis of various tests/circumstances as laid down by Supreme Court in the aforesaid judgment. These facts and circumstances on the basis of which the question of benami transaction is to be determined, would be established only on the basis of evidence to be led by the parties. Therefore, it is clear that suit cannot be dismissed at this stage on the basis of the contention raised on behalf of defendant no.1 that suit is barred by the Benami Act.
Perusal of the plaint clearly discloses cause of action in favour of plaintiff. Reading of the plaint does not disclose prima facie that the plaint is barred by any law. Therefore, the plaint cannot be rejected under Order VII Rule 11 CPC in a summary manner without trial. The various issues as raised on behalf of the plaintiff and defendant No. 1 can only be decided after trial and considering the evidence on record.
The present application is found without any merits and the same is accordingly dismissed.
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2023 (8) TMI 1548
Seeking grant of regular bail - Smggling of contraband - Compliance with procedural requirements under the NDPS Act, particularly regarding the drawing of samples and preparation of seizure memo - HELD THAT:- It is noteworthy that, firstly, Section 52 of the NDPS Act is directory in nature, secondly, non-compliance of the said provision, in itself, cannot render the actions of the Investigating Officers null and void and lastly, whether non-compliance of rules, in cases involving commercial quantity, could be a ground for grant of bail, will have to be examined considering the nature of violation of such standing procedure and consequences thereof.
In the opinion of this Court, the applicant also cannot claim parity with the accused persons in SURAJ VERSUS STATE GOVT. OF NCT OF DELHI [2023 (8) TMI 1546 - DELHI HIGH COURT] and PRIYARANJAN SHARMA VERSUS STATE OF NCT DELHI [2023 (8) TMI 1547 - DELHI HIGH COURT] as the situation(s) involved therein were far from what are involved herein. In any event, reliance placed by the learned counsel for the applicant on the aforesaid cases is misplaced, as the period undergone in the present case is far less than what was involved therein and bail granted to the accused therein was under the facts of those cases. Even otherwise, it is trite that parity is not the sole ground for granting bail to an accused like the applicant herein, more so, whence there is a huge difference between the quantum of contraband recovered/ involved in the present case - the Court must not forget that the burden always remains on the prosecution to prove the guilt of the accused beyond reasonable doubt and it cannot be ignored that the applicant has yet not come up with any plausible explanation, during trial, as to the reason for his possession of such large quantities of contraband.
Admittedly, the charges are yet to be framed and no witnesses have been examined so far before the learned Trial Court. Releasing the applicant on bail at this stage may amount to the applicant influencing the witnesses or tampering with evidence.
Seeing the gravity of the offence involved and the factual matrix of the case that colossally large quantities of alleged NDPS medicines were recovered from the possession of the applicant and further most relevantly as the applicant is yet to come up with any explanation, why he was in possession of such large quantities of contraband, in the opinion of this Court, grant of bail to the applicant at this stage will not be appropriate and is not called for.
The present application seeking grant of regular bail registered under Section (s) 8/21/22/28/29/30 of the NDPS Act at Central Bureau of Narcotics, Delhi, is dismissed.
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2023 (8) TMI 1547
Grant of bail - recovery of contraband - contrary to the procedure laid down under Section 52A (2) of NDPS Act - whether the sampling was done correctly or incorrectly or whether the samples have been tampered with, will not be a question which needs to detain this Court as of now? - HELD THAT:- This Court has considered the judgments of the Single Bench of Bombay High Court in case of SANTOSH PANDURANG PARTE VERSUS AMAR BAHADUR MAURYA AND ANR. [2023 (7) TMI 1486 - BOMBAY HIGH COURT] and agrees with the observations made therein. Applying the ratio in the present case, it appears that there has been a prima facie violation of provisions of Section 52A (2) of NDPS Act not only in terms of drawing of samples by the complainant on 16.10.2019, which, according to clause (c) of sub-Section (2) of Section 52A of NDPS Act was conferred and vested only upon the Magistrate and none else. That apart, even sending of the samples drawn by the complainant, instead of those drawn by Magistrate, for chemical analysis to the FSL, prima facie appears to be in violation of provisions of Sections 52A of NDPS Act.
The judgment of the Supreme Court in Bothilal’s [2023 (4) TMI 1188 - SUPREME COURT] also makes it clear as to in what manner the prosecuting agencies are to not only prepare an inventory of the contraband seized but also the manner in which the Magistrate alone is empowered or competent to draw the samples in accordance with Sections 52A(2)(c) of NDPS Act. The same appears, prima facie, to have been violated in the present case.
This Court is of the considered opinion that the applicant has made out a case for release on regular bail and accordingly the applicant be released on bail on his furnishing personal bond in the sum of Rs. 2 Lakhs with one surety of like amount to the satisfaction of the learned Trial Court, subject to the fulfilment of conditions imposed - the bail application stands disposed of.
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2023 (8) TMI 1546
Seeking grant of regular bail - commercial quantity of contraband under the NDPS Act - Applicability of Section 37 of the NDPS Act concerning stringent conditions for bail - HELD THAT:- It is manifest from the perusal of the Nominal Roll on record that the applicant has already spent 03 years 08 months and 10 days (approx.) in judicial custody and is thus entitled to be released on regular bail by virtue of the ratio laid down by the Supreme Court in Rabi Prakash [2023 (7) TMI 1459 - SC ORDER] and Mohd Muslim [2023 (5) TMI 321 - SUPREME COURT].
Though the FIR was registered on 16.10.2019, the trial is still at the stage of examination of prosecution witnesses and it appears that it would take some time for the prosecution evidence to be concluded and thus, the liberty of an individual cannot be restrained without any reasonable cause.
Keeping in view the ratio laid down by the Supreme Court in Mohd. Muslim, prima facie and as of now, there is no material placed on record by the respondent to show that the applicant, if released, may involve himself in similar offences. It is also clear from the aforesaid that there has to be tangible or ascertainable material for the Court to reach any such conclusion. The absence whereof cannot be read against the individual.
The applicant is entitled to be and is released on regular bail upon furnishing a personal bond of Rs.2,00,000/- with one surety of the like amount to the satisfaction of the learned Trial Court, subject to the fulfilment of conditions imposed - bail application allowed.
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2023 (8) TMI 1498
Refusal to make a Reference under Section 10 of the Industrial Disputes Act, 1947 - raising the dispute after 24 years of termination - Whether appropriate Government can refuse to make a Reference under Section 10 of the Industrial Disputes Act, 1947 on the ground of delay and latches? - Whether the Government can take up the role of Adjudicating Authority while deciding the question as to whether a Reference be made or not?
HELD THAT:- The intention of the legislature is to be gathered from the words used under Section 10 (1) of the Act of 1947, therefore, it is not open for the appropriate Government to travel beyond the intention of the legislature and it could not be presumed that the legislature has committed mistake in not providing limitation period while interpreting the statutory provision. Thus, it can safely be held that it would not be open for the appropriate Government, while exercising the powers under Section 10 (1) of the Act to decide the question whether the claim of the workman is stale or not.
Hence, it is clear that the delay and latches itself cannot be a ground for refusing to make a Reference. If a person is guilty of delay and latches, it may be a ground for the Labour Court, either to refuse to grant any relief or refuse to grant relief of back wages. The Government cannot take up the role of an Adjudicating Authority while deciding the question as to whether a Reference should be made or not.
While referring the dispute, the appropriate Government can formulate the question of ‘Delay & Latches’ to be decided by the Labour Court as a preliminary issue while simultaneously also making a reference on the industrial dispute to be decided on secondary issue.
The impugned order is quashed and set aside, the Government is directed to make a Reference of the dispute - Petition disposed off.
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2023 (8) TMI 1497
Dishonor of cheque - right to trial - cross-examination of witnesses - recall of complainant u/s 145(2) of NI Act for cross examination - violation of principles of natural justice - HELD THAT:- From the documents on record it appears that examination in chief of the complainant was recorded on 29.9.2022. On completing the examination in chief, the learned trial Judge recorded that the accused did not make any application to cross examine the complainant. Even otherwise accused is not prepared to cross examine the complainant on the ground that his advocate is busy before another Court. Section 309 of Cr.P.C. provides that the fact that pleader of the party is before another Court cannot be a ground for adjournment. Hence, cross of the accused is closed.
The statement was explained to the accused and the case was kept for defence evidence. Advocate also could not remain present on account of miscommunication about the date of hearing. In the application under Section 145(2) of the Act, it was stated that the case has been filed by the complainant fraudulently by misusing cheques. The accused has paid the amount as claimed by complainant. Learned Magistrate vide order dated 7.2.2023 allowed the applications. The Court had observed that the accused was not aware about the filing of an application for cross examination on the date of completion of examination in chief of PW1. Advocate was not present.
Admittedly no such application for cross examination was filed on the date when examination in chief was over. However, it cannot be ignored that at the relevant time accused was not represented by advocate. Evidence recorded in examination in chief has to be tested by granting opportunity to the accused through cross examination. Although the impugned order does not deal in detail about application under Section 145(2) of the NI Act, from the grounds urged in the application, the respondent cannot be deprived of cross examination of complainant.
In the case of Rakesh Singh Vs. Anil Madanmohan Gulati [2023 (5) TMI 645 - BOMBAY HIGH COURT] this Court again reiterated principles to underline Section 145(2) of the NI Act and observed that accused has right to fair trial. Once it is recognized that accused had absolute and unqualified right to have the complainant and any or all his witnesses summoned for cross examination, accused cannot be deprived of such right unless there is extra ordinary reason for doing so.
Considering the factual aspect of the present case, no interference is called for in the impugned order passed by the learned Magistrate and devoid of merits - petition dismissed.
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