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Indian Laws - Case Laws
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2023 (8) TMI 1361
Interference with lawful possession and ownership of the land in question - offence of dacoity punishable Under Section 395 of the Indian Penal Code - even if the entire case of the prosecution is believed to be true, whether the ingredients to constitute the offence of dacoity punishable Under Section 395 of the Indian Penal Code are disclosed? - criminal intimidation punishable Under Sections 504 and 506(2) of the Indian Penal Code - FIR was lodged in the year 2022 for the alleged offence of the year 2021 and more particularly, without furnishing any details as regards the date and time of the alleged incident - case on hand falls within any one of the parameters laid down by this Court in the case of STATE OF HARYANA VERSUS BHAJAN LAL [1990 (11) TMI 386 - SUPREME COURT], for the purposes of quashing the criminal case or not?
HELD THAT:- Section 504 of the Indian Penal Code contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence - In judging whether particular abusive language is attracted by Section 504, Indian Penal Code, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.
Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, Indian Penal Code if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the Accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace - A bare perusal of Section 506 of the Indian Penal Code makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the Accused had an intention to cause alarm to the complainant.
Considering the nature of the allegations levelled in the FIR, a prima facie case to constitute the offence punishable Under Section 506 of the Indian Penal Code may probably could be said to have been disclosed but not Under Section 504 of the Indian Penal Code. The allegations with respect to the offence punishable Under Section 504 of the Indian Penal Code can also be looked at from a different perspective. In the FIR, all that the first informant has stated is that abusive language was used by the Accused persons - The Court while exercising its jurisdiction Under Section 482 of the Code of Criminal Procedure or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation.
The requirement and need to balance the law enforcement power and protection of citizens from injustice and harassment must be maintained. It goes without saying that the State owes a duty to ensure that no crime goes unpunished but at the same time it also owes a duty to ensure that none of its subjects are unnecessarily harassed.
The continuation of the criminal case arising from the FIR No. 224 of 2022 registered at Mirzapur Police Station, Saharanpur will be nothing but abuse of the process of the law. In the peculiar facts and circumstances of this case, we are inclined to accept the case put up on behalf of the Appellants herein - the impugned order passed by the High Court of Judicature at Allahabad is hereby set aside - appeal allowed.
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2023 (8) TMI 1359
Seeking quashing of Criminal proceedings - FIR lodged after a period of 14 years from the alleged illegal acts of the appellants - Illegal mining - exploiting poor persons - invocation of inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution - HELD THAT:- Even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence as alleged are disclosed. It is pertinent to note that the FIR in question came to be lodged after a period of 14 years from the alleged illegal acts of the appellants. It is also pertinent to note that in the FIR no specific date or time of the alleged offences has been disclosed.
Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely - The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation.
The impugned order passed by the High Court of Judicature at Allahabad is hereby set aside - Appeal allowed.
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2023 (8) TMI 1311
Dishonour of Cheque - vicarious liability of Director - resignation on the date of issuance of cheques in dispute - cause of action arisen for filing impugned complaints - Sections 138 and 141 of NI Act - HELD THAT:- In the case at hand, considering the proximity of time in alleged resignation of the petitioner and issuance of cheque in question and its dishonour, absence of other details and material such as appointment of any new director in place of present petitioner, any board resolution to strengthen the case of petitioner and in view of other reasons mentioned in preceding paragraphs, this Court, at this stage, cannot come to a conclusion, with utmost certainty, as to when had the petitioner actually resigned from the office of Director of accused company and as to whether or not he was involved in dishonouring of the cheques in question, amounting to Rs. 11.75 crores, especially when there are specific averments to the effect that he was involved in the process of obtaining loans from the complainant and issuing the cheques in question.
The material placed on record by the petitioner is not sterling incontrovertible material or unimpeachable material to show that petitioner was not involved either in day-to-day activities of the company or had no role in issuance of cheque in question or its dishonouring.
Petition dismissed.
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2023 (8) TMI 1288
Dishonour of Cheque - acquittal of accused - blank signed cheques - rebuttal of presumptions - Loan advanced or not - evidences not appreciated in correct manner - several contradictions in the case set out by the complainant in the legal notice.
Black signed cheques - HELD THAT:- This Court notes that it was rightly held by both the Courts below, after taking note of judicial precedents, that the law did not require the entire cheque to be filled by the drawer only and if the signatures were admitted, the person signing the cheque would be liable to the holder for the amount as mentioned in the cheque, in due course.
The contention raised on behalf of petitioner that since the complainant had filled the details on the blank signed cheque handed over to her by the petitioner, the same would lead to an inference that there was no legally recoverable debt, is without any merit.
As revealed from records including cross-examination of the petitioner, the petitioner thereafter had not asked the complainant to return his blank signed cheques nor he had lodged any complaint in this regard with the police or any other department. It is also a matter of record that the complainant had presented the cheques for encashment not only once but twice, however, the petitioner had even then neither approached or contacted the complainant, nor he had given any reply to the legal notice sent by her despite having received the same - the defence raised by the petitioner that the cheques were not issued toward a legally enforceable debt did not hold any ground.
As far as the other contention that income tax officer had informed the Court that income tax returns of the complainant for several years in between were not available with them is concerned, it is to be noted that the officer concerned had informed the Court that the department was not able to procure the required documents despite best efforts as the voluminous records had got mixed up due to shifting of their offices. Further, as regards the argument that the complainant was not financially strong so as to have advanced any loan to the petitioner, the complainant had stated that for the grant of first loan to the petitioner, she had obtained a loan of Rs. 6.35 lakhs from her mother-in-law and taken rest amount from the chest reserves of home and for the second loan, she had sold her jewellery. These averments of the complainant were also corroborated from her income tax returns and other material produced by the complainant.
This Court is also of the view that the defence raised by the petitioner was not sufficient to rebut the presumption raised against him under Section 118(a) and 139 of NI Act, and where the issuance of cheques and signatures on the same were not disputed and when the complainant was sufficiently able to establish the factum of having advanced loans to the petitioner as well as their sources, this Court find no infirmity with the judgment passed by the learned ASJ vide which the conviction of the petitioner under Section 138 of NI Act as recorded by the learned MM was affirmed.
Petition dismissed.
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2023 (8) TMI 1287
Dishonour of Cheque - Quantum of sentence / Fine - whether on the basis of the documents produced by the accused, can it be said that the complainant was carrying a money lending business and without license? - HELD THAT:- The accused tried to take defence about re-payment, however, he could not substantiate it. There is due compliance about issuance and service of notice. So finding of the trial Court requires to be set aside. The complainant has proved the ingredients for offence under Section 138 of Negotiable Instruments Act. The accused needs to be dealt with as per law. Mr. Sawant submitted that instead of remanding the matter this Court can decide this matter. He submitted that there is a punishment in the form of imprisonment and fine being twice amount of the cheque.
The sentence is optional, either it may be imprisonment for two years or fine which may be twice amount of the cheque or both - it is not felt proper to impose sentence of imprisonment but the complaint is pending since 2011 - the respondent can be imposed with the fine being twice the amount of the cheque. There is a request for leniency from imposing twice the amount of the cheque. It can’t be accepted when this Court is not imposing the sentence of imprisonment.
Appeal allowed.
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2023 (8) TMI 1228
Dishonour of Cheque - insufficiency of funds - whether the order passed by the High Court quashing the summoning order and the proceedings against the respondent no.1 was justified? - HELD THAT:- It is not in dispute that the premises owned by the appellants was taken on rent by the respondent no.3 firm. Though Partnership Deed has not been placed on record before this Court, however, from para 42 of the impugned order of the High Court it is evident that the partnership firm consisted of three partners, namely, Mark Alexander Davidson and Sachhidanand Kanchan and the third one was not impleaded in any complaints as accused. To discharge the liability towards the payment of rent, various cheques were issued to the appellants. The cheques, when presented to the Bank, were dishonoured on account of insufficiency of funds.
The High Court had accepted the argument raised by the respondent no.1 and quashed the summoning order as well as the complaints against him, accepting the plea that he had retired from the partnership firm for which a Retirement Deed was already executed on 01.04.2018 - The fact remains that, a public notice regarding retirement by the respondent no.1 from the firm was issued on 09.02.2022 i.e., much after the complaints had been filed and the summoning order had been issued by the trial Court on 05.02.2020. Even the quashing petitions were filed by the respondent no.1 in October 2021. The public notice was issued few days before the High Court decided the quashing petition on 14.03.2022. It is not the case set up by the respondent no.1 that in the Partnership Deed it is mentioned that he was a sleeping partner in the firm.
It is well settled that the final judgment of the trial Court will depend on the evidence adduced before it. As there are specific allegations against the respondent no.1 in the complaint and he was admittedly a partner in the partnership firm when the rent deed was executed, he is liable to face prosecution. Powers under Section 482 of the Code can be exercised by the High Court in case when it comes across unimpeachable and incontrovertible evidence to indicate that the partner of the firm did not have any concern with the issuance of cheques. The case in hand is not of that kind.
The impugned order passed by the High Court quashing the summoning order and the complaints against the respondent no.1 are set aside - Appeal allowed.
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2023 (8) TMI 1227
Scope of arbitral award - Rejection of claims set aside - legality of the order passed by the Division Bench of the High Court while exercising jurisdiction under Section 37 of the Act - HELD THAT:- The scope of jurisdiction under Section 34 and Section 37 of the Act is not akin to normal appellate jurisdiction. It is well-settled that courts ought not to interfere with the arbitral award in a casual and cavalier manner. The mere possibility of an alternative view on facts or interpretation of the contract does not entitle courts to reverse the findings of the Arbitral Tribunal.
In the present case, the Arbitral Tribunal interpreted the contractual clauses and rejected the Respondent’s claims pertaining to Disputes. The findings were affirmed by the Single Judge of the High Court in a challenge under Section 34 of the Act, who concluded that the interpretation of the Arbitral Tribunal was clearly a possible view, that was reasonable and fair-minded in approach.
The principle of interpretation of contracts adopted by the Division Bench of the High Court that when two constructions are possible, then courts must prefer the one which gives effect and voice to all clauses, does not have absolute application. The said interpretation is subject to the jurisdiction which a court is called upon to exercise. While exercising jurisdiction under Section 37 of the Act, the Court is concerned about the jurisdiction that the Section 34 Court exercised while considering the challenge to the Arbitral Award.
The Division Bench of the High Court committed an error in setting aside the concurrent findings of the Arbitral Tribunal and the Single Judge of the High Court. The Award of the Arbitral Tribunal and the decision of the Single Judge of the High Court under Section 34 of the Act cannot be termed as perverse or patently illegal as concluded by the Division Bench of the High Court. The decision of the Arbitral Tribunal is a plausible view, and the Single Judge refrained from interfering with it under Section 34 of the Act - the Division Bench should not have interfered with these orders.
Appeal allowed.
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2023 (8) TMI 1226
Award rendered by the Arbitrator in favor of the appellant set aside - rejection of its counterclaim - relevant date from which the escalation claim was calculable - HELD THAT:- The impugned judgment, on the face of the record, in this Court’s opinion, is plainly erroneous. It is far too well established that the scope of interference by a court in the context of a challenge to an arbitration award is narrow. In the case of an appeal by a party is aggrieved by rejection of its objections, the Appellate Court’s review power (especially to substitute its findings in the facts and the interpretation of contract and interpretation of law) are far narrower. This court has in line of authorities previously held that such jurisdiction should be invoked rarely and in cases where it is apparent that the Arbitrator had “misconducted” the proceedings in terms of Section 30 of the Arbitration Act.
In the present case, this court is persuaded to hold that the High Court in proceeding to interpret the terms of the contract and applying them to the fact situation in the present case substituted its findings hereby entering the zone which was not permitted to it – in regard to upsetting the award as far as it found in favor of the appellant – contractor and also in allowing the counterclaim of ONGC. For these reasons, the impugned order is hereby set aside.
Appeal allowed.
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2023 (8) TMI 1225
Dishonour of Cheque - failure to consider that no liability arose in order to attract the impugned proceeding under Section 138 of the Negotiable Instruments Act - HELD THAT:- In the present case, the cheque was issued towards the complainant’s professional fees and the petitioner has admitted paying a sum of only Rs. 10,000/-. - the petitioner has not been able to rebut the presumption under Section 139 as admittedly professional fees was due to the complainant for discharge of his professional duty. The cheque was issued towards that liability of professional fees.
Thus, considering the materials on record and in view of the discussions made, the judgment under revision being in accordance with law, needs no interference by this court - Revision application dismissed.
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2023 (8) TMI 1224
Dishonour of Cheque - prayer for compounding of offence - HELD THAT:- Having taken note of the fact that the entire amount of compensation, as awarded by the learned Trial Court, i.e., Rs.8,00,000/-, has been received by the complainant and he has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accusedpetitioner 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 in view of the non-obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (hereinafter “CrPC”) will not be applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code, 1860.
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, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court - here, the parties are permitted to get the matter compounded in light of the compromise arrived inter se them.
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.5000/- only with the H.P. State Legal Services Authority, Shimla, H.P., within four weeks from today.
Petition disposed off.
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2023 (8) TMI 1223
Refusal ot register the document - Correctness of valuation made in a decree - Section 47(A) of the Registration Act - petition was resisted by the appellants contending that the decree relates to a property which belongs to the Government and therefore, the same cannot be registered in view of Section 22(A) of the Registration Act, 1908 - HELD THAT:- The decree granted by the Court which is sought to be registered is nothing but an agreement of sale subject to certain conditions. As provided under Section 54 of the Transfer of Property Act, such a decree does not create an interest in immovable property.
Very reading of Sub-Section 1 of Section 22-A of the Act, would reveal that what prohibited is the registration of an instrument relating to transfer of immovable properties by way of Sale, Gift, Mortgage, Exchange or Lease. Therefore, an agreement of sale which does not create interest in immovable property would not come within the ambit of Section 22-A - the submissions of the learned Senior Counsel cannot be agreed upon on this question.
Place of registration - HELD THAT:- The office of the third respondent within whose jurisdiction the Court had passed the decree is situate, will also be a proper office. Moreover, since the very decree is only an agreement of sale which does not affect immovable property, it will not come within the ambit of Section 28. Therefore, registration can be done either at the office of the Sub-Registrar in whose Sub-District, the original decree or order was made or at any other place as desired by the parties to that document - the objections of the learned Additional Advocate General also cannot be sustained on this issue also.
Pendency of the writ appeal - HELD THAT:- As rightly pointed out by the learned Senior Counsel for the first respondent, the writ appeal has been filed challenging a direction issued by the writ Court to grant patta to the petitioner in W.P(MD)No.12425 of 2008. The defendant in the suit along with others had in fact, made a claim over the property. Therefore, pendency of that writ appeal cannot be a ground to refuse registration.
The writ appeal fails and it is accordingly, dismissed.
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2023 (8) TMI 1127
Dishonour of Cheque - insufficiency of funds - validity of issuance of summon to stand trial for the offence under Section 138 of the Act, 1881 - non-application of mind - HELD THAT:- It transpires that the applicant is being tried for the offence under Section 138 of the Act, 1881. On 23.10.2019, due to absence of the applicant in the learned trial court concerned, process under Section 82 Cr.P.C. came to be issued. Admittedly, the present applicant is a woman, who is a senior citizen.
The issuance of non-bailable warrant and process under Section 82 Cr.P.C. simultaneously cannot be appreciated in view of law laid down by the Hon’ble Supreme Court in Inder Mohan Goswami’s case [2007 (10) TMI 550 - SUPREME COURT] and Raghuvansh Dewanchand Bhasin’s case [2011 (9) TMI 1224 - SUPREME COURT] as the same is patently illegal and, therefore, unsustainable.
In case, the applicant, who is a woman and is a senior citizen, moves an application seeking dispensation of her personal attendance before the learned trial court concerned, the learned trial court concerned is expected to dispose of the same by dispensing with personal attendance of the applicant subject to the fact that whenever the learned trial court concerned finds her physical appearance necessary, she may be directed to appear in person - This Court, on a careful perusal, finds that the applicant has not challenged the order whereby the applicant was summoned to stand trial for the offence under Section 138 of the Act, 1881.
In want of specific challenge to the summoning order, at this stage, this Court is not inclined to interfere with the same particularly having regard to the observations made - the present application under Section 482 Cr.P.C. is partly allowed.
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2023 (8) TMI 1040
Violation of principles of natural justice - Impounding of petitioner's passport - wrong information given by agent at the time of renewal application - case of petitioner is that the impounding was done without notice to the petitioner - HELD THAT:- The petitioner was employed as labourer in foreign countries. He was working in Singapore and later in Middle East. The action taken by the respondent cannot be faulted. If false particulars and false documents are given, the Passport Authority has no option but to impound the passport - The petitioner has no where challenged the basic premises on which the impugned action is resting. Therefore, the question of granting declaration as sought for does not arise.
At the same time, this Court cannot lose sight of the human angle. It is a fact that the citizens take the services of middle men and agents to transact with the authorities. In this case, the agent employed by the petitioner had indulged in fraud. In order to quicken the process of obtaining passport, he has given false particulars. During verification, the same came to light - However, for almost nine years, the petitioner has been without any passport. Obviously his life and career has been affected. Even if the petitioner had committed a mistake, he cannot be condemned for ever. The biblical concept of eternal damnation goes ill with the reformatory trend in modern jurisprudence.
The petitioner is permitted to submit a fresh application before the respondent - petition allowed.
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2023 (8) TMI 1007
Enhancement of minor penalty - seeking direction to respondents to issue No Objection Certificate to enable him to join as Professor (Energy Engineering) in North Eastern Hill Central University, Shillong - HELD THAT:- From the perusal of reply as well as arguments of learned counsel for the respondents, it is evident that there is no provision which empowers Appellate Authority to enhance quantum of penalty imposed by original authority. In the case in hand, appellate order dated 16.12.2022 has been passed by Joint Secretary to Government of India and it has been passed in terms of Central Civil Services (Classification Control & Appeal) Rules 1965. Neither reply nor arguments of learned counsel for the respondents are disclosing power of Appellate Authority to enhance penalty, thus, penalty has been enhanced without jurisdiction. It is settled proposition of law that Appellate Authority can enhance penalty if there is specific provision and in the absence of provision, Appellate Authority cannot enhance penalty.
A Division Bench of this Court in M/S NIRVAIR SINGH VERSUS FINANCIAL COMMISSIONER TAXATION [2017 (3) TMI 1423 - PUNJAB & HARYANA HIGH COURT] has adverted with this issue and has held that Appellate Authority cannot enhance penalty in the absence of specific power.
From Clause VII of paragraph 2 of Office Memorandum dated 28.09.2022, it is evident that it is applicable for Vigilance Clearance whereas petitioner is not seeking Vigilance Clearance. The petitioner is not asking for certificate without disclosing factum of penalty whereas petitioner is seeking ‘No Objection Certificate’ to join another department. The case of the petitioner is not covered by aforesaid clause, thus, reliance placed by respondent is misplaced.
The respondent is hereby directed to issue ‘No Objection Certificate’ within one week from today - petition disposed off.
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2023 (8) TMI 985
Modification of Arbitral Award - reduction in the rate of interest - whether the High Court erred in modifying the arbitral award to the extent of reducing the interest, from compound interest of 18% to 9% simple interest per annum? - HELD THAT:- Section 31(7)(b) of the 1996 Act, was amended by Act 3 of 2016, w.e.f. 23.10.2015. The pre-amended provision, empowers the arbitrator to award both pre-award and post-award interest, and specifies that the awarded sum would carry an interest of 18% per annum, unless provided otherwise, from the date of award till the date of payment.
In the present case, given that the arbitration commenced in 1997, i.e., after the Act of 1996 came into force on 22.08.1996, the arbitrator, and the award passed by them, would be subject to this statute. Under the enactment, i.e. Section 31(7), the statutory rate of interest itself is contemplated at 18% per annum. Of course, this is in the event the award does not contain any direction towards the rate of interest. Therefore, there is little to no reason, for the High Court to have interfered with the arbitrator’s finding on interest accrued and payable. Unlike in the case of the old Act, the court is powerless to modify the award and can only set aside partially, or wholly, an award on a finding that the conditions spelt out under Section 34 of the 1996 Act have been established.
The limited and extremely circumscribed jurisdiction of the court under Section 34 of the Act, permits the court to interfere with an award, sans the grounds of patent illegality, i.e., that “illegality must go to the root of the matter and cannot be of a trivial nature”; and that the tribunal “must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground”.
The impugned judgment warrants interference and is hereby set aside to the extent of modification of rate of interest for past, pendente lite and future interest. The 18% per annum rate of interest, as awarded by the arbitrator on 21.01.1999 (in Claim No. 9) is reinstated. The respondent-state is hereby directed to accordingly pay the dues within 8 weeks from the date of this judgment.
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2023 (8) TMI 984
Retrenchment from services - Whether the action of the management of Food Corporation of India, Patna, retrenching the services of S/Sh. Sashi Shankar and 20 others (list enclosed) is justified and legal? If not, what relief the concerned workmen are entitled to? - HELD THAT:- In UNION OF INDIA (UOI) AND ORS. VERSUS N. MURUGESAN AND ORS. [2021 (10) TMI 1375 - SUPREME COURT], this Court pointed out that the phrases ‘approbate’ and ‘reprobate’ mean that no party can be allowed to accept and reject the same thing, as the principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate, that is, a person cannot be allowed to have the benefit of an instrument while questioning the same. It was noted that an element of fair play is inbuilt in this principle and it is a species of estoppel dealing with the conduct of a party.
In the case on hand, the management of FCI filed a writ petition challenging the Award passed by the Tribunal but having secured conditional interim relief therein, the management chose to implement the impugned Award though it was under no compulsion to do so - the management of FCI, be it for whatever reason, chose to acquiesce with and accept the Award in its entirety, though it made such compliance subject to the result of the writ petition. Its somnolence, thereafter, in taking timely measures for expeditious disposal of the writ petition compounded the matter further, leading to the passing of 18 long years, which conclusively weighed with the learned Judge and, in our considered opinion, rightly so. A party to a proceeding cannot be permitted to challenge the same but thereafter abide by it out of its own free will; garner benefit from it; get the opposite party to effectively alter its position; and then press its challenge after the passage of a considerable length of time.
Having allowed the workmen to put in regular service to its own benefit for over two decades, the management can no longer claim an indefeasible right to continue with and canvass its challenge to the Award, merely because it made its compliance with the Award conditional long ago. In the light of their absorption in regular service, these workmen, who may have otherwise opted for employment opportunities elsewhere, altered their position and remained with the FCI. Having placed them in that position, it is no longer open to the management of FCI to seek to turn back the clock - the position obtaining for over two decades cannot be altered, by accepting the legally weighty but essentially pedantic view taken by the Division Bench, ignoring the factual position.
The appeal filed by the Executive Staff Union of FCI, on behalf of the workmen, is accordingly allowed.
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2023 (8) TMI 983
Disciplinary Proceedings against Chartered Accountant (CA) - Irregularities in Securities and Banking Transactions (the JPC) SEBI Inspection Report on Canbank Mutual Fund (CBMF) and Annual Reports of various schemes of CBMF for the year 1991-92 - removal of Respondents from the register of members for a period of six months - HELD THAT:- Considering the nature of the charges, the three charges only relate to non-reporting in the annual reports of CBMF. Respondent is not accused of indulging in violative transactions or Respondent was responsible or liable for the alleged losses of CBMF or Respondent indulged in direct or indirect lending or underwriting etc. Nothing has been brought to our notice that Respondent had committed any similar offence earlier or later, in view of the fact that the matter relates to Financial Year 1991-1992. Almost 21 years have passed since the report was received from the Disciplinary Committee. The information relates to Financial Year 1991-92 and the Institute received it in 1995.
The fact that the pendency of this Reference itself would have been like the proverbial Damocles sword hanging over the head of Respondent for about 30 years and in view of the fact that Mr. Mehta has given an undertaking on instructions as recorded, there is no need to take any further action against Mr. Salivati.
It is directed that the proceedings be filed by the Institute - Reference disposed.
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2023 (8) TMI 892
RTI - Seeking various information regarding third parties (Petitioner) from excise department - who has claimed the benefit of exemption - Seeking list of manufacturers or suppliers of the equipments/machineries of plants before the Central Excise Department - Right to Information Act, 2005 - HELD THAT:- This Court is of the opinion that there is no infirmity in the order passed by the First Appellate Authority dated 15.11.2011 in directing the information in respect to the information so sought for in the application dated 01.09.2011 from Clauses 1 (a) to 1 (x) except Clause 1(g).
Now coming to the information as regards Clause 1 (g) of the Application, this Court enquired with the learned counsel for the petitioners as to whether the petitioners claimed confidentiality while furnishing the list of manufacturers or suppliers of the equipments/machineries of plants before the Central Excise Department. The learned counsel for the petitioner submitted that he has no instructions in that regard. It is also relevant to take note of that there is no pleading to the effect that confidentiality was claimed at the time of furnishing the information pertaining to the list of manufacturers/suppliers of the equipments/machineries of the plants before the Central Excise Department. Taking into account, it is the further opinion of this Court that the information sought for under Clause 1 (g) of the application dated 01.09.2011 would not come within the ambit of Section 11 of the Right to Information Act, 2005.
This Court further finds it relevant to take note of another submission of the learned counsel for the petitioners which pertains to Section 19 (4) of the RTI Act in as much as it is the submission of the learned counsel for the petitioners that the reasonable opportunity had to be given to the third party when an appeal is preferred relating to the information of third party. The said submission though at the first blush looks attractive but the same is misconceived taking into account that the petitioners herein did not claim confidentiality to come within the ambit of Section 11 of RTI Act.
This Court does not find any merit in the instant writ petition for which the instant writ petition stands dismissed.
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2023 (8) TMI 842
Dishonour of Cheque - delay of 34 days in filing the revision petition - sufficient cause for delay or not - presumption under Section 138 of the NI Act - HELD THAT:- As far as the question of limitation is concerned, it is settled law that rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
In Apangshu Mohan Lodh & Ors. Vs. State of Tripura & Ors., [2003 (10) TMI 641 - SUPREME COURT], the Apex Court held that the power of condonation of delay is discretionary and is to be liberally construed.
No doubt, delay is fatal to the case of any party but as far as possible the matter should be heard and decided on merits. In the instant case, there is a delay of 34 days, which should be condoned in order to decide the present case on merits - Secondly, it has been held by the learned Sessions Court that the defences raised by the petitioner that the respondent had never advanced any friendly loan and he did not have any financial capacity to lend any such huge amount of loan and that advancing of friendly loan is not accounted in the business of account and income tax returns are such defences which can only be decided once the parties lead their respective evidence before the trial court.
In the instant case, the issuance of cheque is not denied by the petitioner and there is a presumption under Section 138 of the NI Act that the Court shall presume that the holder of a cheque received the cheque of the nature referred into Section 138 of the NI Act, for the discharge, in whole or in part or any debt or other liability.
As far as the question of limitation is concerned, that part of the impugned order is set aside and delay in filing the revision petition is condoned. With these observations, the present petition is dismissed.
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2023 (8) TMI 841
Dishonour of Cheque - acquittal of the accused 1 and 2 for the offence punishable under section 138 of the N.I Act - HELD THAT:- The scope of interference in an appeal against Acquittal has been gone into by the Hon'ble Supreme Court in JASWANT SINGH VERSUS STATE OF HARYANA [2000 (4) TMI 825 - SUPREME COURT] wherein it was observed While sitting in Judgment over an acquittal, the appellate Court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative, the order of Acquittal is not to be disturbed.
In light of well-settled legal principles, the burden lies on the accused to prove the non-existence of consideration by bringing on record such facts and circumstances, which would lead the Court to believe the non-existence of the consideration. If the accused discharges the onus of proof showing that the existence of consideration was improbable or doubtful and the execution of the promissory note, the onus would be shifted to the complainant. Then he will be obliged to prove the existence of the consideration.
The available evidence clearly indicates that the accused had no compelling need to borrow the specified amount, considering that they possessed Rs. 7,00,000/- in their bank account at the time of the Exs. P1 and P2 promissory note transactions. The complainant has not provided a satisfactory explanation or demonstrated the source of her income that would enable her to lend such a substantial sum to the accused. The accused have presented substantial evidence before the Court, and based on this, the complainant's assertion that they issued a cheque on 03.02.2013 is proven to be inaccurate. The evidence adduced supports the view that the accused's version is more likely and credible in this context - It is a cardinal principle of criminal jurisprudence that in an acquittal appeal, if another view is possible, then also the appellate Court cannot substitute its view by reversing the Acquittal into conviction unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
In the instant case, the appellant has yet to be able to point out how the findings recorded by the learned Additional Sessions Judge are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
The trial Court's conclusion was found to be erroneous, and the appellate Court’s Judgment aligns with the settled legal position. The point is accordingly answered in favour of the accused and against the complainant.
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