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2024 (5) TMI 660 - SUPREME COURT
Restoration of securities held by the appellant which were allegedly illegally sold by the respondent-firm - HELD THAT:- The fact remains that as on 9th May, 2017, the respondent was liable to pay a sum of Rs.21,70,143/- which the respondent has not offered till date. In fact the liability of the respondent to pay the said amount of Rs.21,70,143/- was recognized by the Award made by the Appellate Arbitral Tribunal on 27th September, 2013.
Therefore, to put an end to the litigation which started in 2012, considering the present age of the appellant, this is a fit case to exercise Extra Ordinary Jurisdiction of this Court under Article 142 of the Constitution of India. It is proposed to direct the respondent to pay simple interest at the rate of 12% per annum on the amount of Rs.21,70,143/- from 27th September, 2013 which is the date of the Award of the Appellate Arbitral Tribunal.
The impugned judgment is modified and it is ordered by directing that the respondent shall pay a sum of Rs.21,70,143/- to the appellant along with simple interest thereon at the rate of 12% per annum with effect from 27th September, 2013 within a period of two months from today.
Appeal allowed.
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2024 (5) TMI 614 - CALCUTTA HIGH COURT
Dishonour of Cheque - legal heir of deceased - substitution of the opposite party (deceased complainant) - It is the case of the petitioner that the opposite party is not the sole legal heir of deceased - HELD THAT:- The Supreme Court in Rashida Kamaluddin Syed & Anr. v. Shaikh Saheblal Mardan (Dead) through LRs. & Anr. [2007 (3) TMI 725 - SUPREME COURT] held that 'it is clear that on the death of Shaikh Saheblal, the case did not abate. It was, therefore, open to the sons of complainant to apply for continuation of proceedings against accused persons.'
The learned Sessions Judge has allowed the application for substitution of the opposite party herein as one of the legal heirs of deceased Swapan Guha. The learned Judge had rightly held that it is for the legal heirs who intend to continue the prosecution on the original complainant’s death, who is to be permitted to prosecute the accused persons - Considering the said order under revision, this Court finds no irregularity in the said order, the same being in accordance with law thus requires no interference by this Court.
This Court has observed that there are other legal heirs of deceased Swapan Guha. The learned Sessions Judge has also clearly held in his order under revision that there are other legal heirs. But as the opposite party being one of the legal heirs wishes to proceed with the case, the learned Trial Court has rightly allowed the same.
The present revisional application is, thus, disposed of.
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2024 (5) TMI 613 - CALCUTTA HIGH COURT
Dishonour of Cheque - conviction of accused - discharge of existing legal liability - in spite of notice being duly served the cheque amount was not paid by the appellant - HELD THAT:- This Court finds that the cheque in question was issued by the appellant herein in discharge of his existing legal liability which he could not successfully rebut.
The demand notice has been duly served upon the accused/appellant and proved before the Trial Court and in spite of notice being duly served the cheque amount was not paid by the appellant herein - From the evidence on record, this Court finds that the learned Trial Court has considered the materials and the evidence on record in accordance with law and, as such, the said order of conviction being in accordance with law requires no interference by this Court.
In Tedhi Singh vs Narayan Dass Mahant [2022 (3) TMI 797 - SUPREME COURT] the Supreme Court held 'we would think that in the totality of facts of this case the appellant has not established a case for interference with the finding of the Courts below that the offence under Section 138 N. I. Act stands committed by the appellant. We have been told that the amount of compensation in a sum of Rs.7 Lakhs which is relatable to the cheque amount has been deposited already in the Trial Court.'
The judgment and order dated 18.03.2017 passed by the learned Additional District & Sessions Judge, (F.T.C. No. II) at Calcutta in Criminal Revision No. 01 of 2015 and the judgment and order of conviction and sentence passed by the learned Metropolitan Magistrate, 19th Court, Calcutta, dated 27.10.2014, in case no. C/16014/2011, convicting and sentencing the petitioner to suffer S.I. for one month and to pay Rs. 4,00,000/- to the complainant as compensation within three months in default to suffer simple imprisonment for a period of six months, is hereby modified - The substantive sentence to suffer S.I. for one month is set aside - Revision application disposed off.
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2024 (5) TMI 612 - BOMBAY HIGH COURT
Dishonour of Cheque - Continuation of proceedings during moratorium period - vicarious liability of director - Despite moratorium, whether institution or continuation of proceedings under Section 138 or 141 of the NI Act against the erstwhile Directors or the persons in-charge of or responsible for conduct of the business of a corporate debtor could be continue? - after resolution plan under Section 31 of the IB Code by Adjudicating Authority and in the light of provisions of Section 32-A of the IB Code, such criminal proceedings will stand terminated against a corporate debtor or not.
HELD THAT:- As per Section 14 of the IB Code, the adjudicating authority shall declare moratorium for prohibiting institution of suit or continuation of pending suit or proceedings against a corporate debtor including execution of any judgment, decree or order. The object of a moratorium provision such as Section 14 is to see that there is no depletion of a corporate debtor's assets during the insolvency resolution process so that it can be kept running as a going concern during this time, thus maximising value for all stakeholders - Notably, moratorium provision does not extinguish any liability, civil or criminal, but only casts a shadow on proceedings already initiated and on proceedings to be initiated. This moratorium shall remain into force till the date of approval of resolution plan or liquidation order under Section 31 of the IB Code. Then, Section 32-A of the IB Code comes into play.
Section 32-A(1) operates only after the moratorium comes to an end. On approval and commencement of the corporate resolution plan, the liability of a corporate debtor for an offence committed prior to commencement of corporate insolvency shall cease and a corporate debtor shall not be prosecuted for an offence if in the resolution plan there is a change in management or control of the corporate debtor to a person other than a promoter and other person mentioned in Section 32A of the IB Code - Interestingly, per the second proviso of Section 32A(1) of IB Code, a natural person, who was in any manner in charge of or responsible to the corporate debtor for the conduct of its business or associated with a corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence shall continue to be liable to be prosecuted and punished for an offence committed by a corporate debtor.
The applicant nos. 2 and 3 are the natural persons through whom the applicant no. 1-Company was managed, rather they are signatories to the cheques in question. The complaint specifically mentions that at the relevant time, the applicant nos. 2 and 3 were managing the day to day affairs and business of the applicant no. 1-Company - the protection of cessation of liability for prior offence under Section 32-A of the IB Code is applicable only to a corporate debtor i.e. a Company and that too only if the management of the Company is changed in the resolution approved by the adjudicating authority - there are substance in the argument of the learned counsel for the non-applicant that the applicant nos. 2 and 3 cannot be protected by Section 32-A of the IB Code.
The protection provided to a corporate debtor under Section 32-A(1) of absolving from its liability for an offence committed prior to commencement of the corporate insolvency process will not be available to the applicant no. 1, a corporate debtor also. Therefore, the applicant no. 1-Company (corporate debtor) is also not absolved from its criminal liability for an offence committed prior to commencement of insolvency proceedings.
There are no merit in the submission of the learned counsel for the applicants. The proceedings against the applicants, for the offence punishable under Section 138 of the NI Act, shall continue against the applicants, the company as well as its directors. Thus, the application is sans merits and fails.
The application is dismissed.
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2024 (5) TMI 611 - SC ORDER
Grant of Regular Bail - misappropriation and transfer of money into various shell companies - Hawala transactions - seeking to include the additional conditions in the interim bail order - it was held by High Court that As this Court granted interim bail on medical grounds, this Court thought fit that the petitioner was not supposed to conduct public meetings and rallies - HELD THAT:- As jointly prayed for by the learned Senior counsels for the parties, the matter is adjourned for ten weeks.
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2024 (5) TMI 610 - SC ORDER
Breach of fundamental rights or not - Seeking withdrawal of condition that appellant shall not create any untoward situation in public and shall not be involved in any political activities, directly or indirectly - HELD THAT:- The imposition of such condition would breach the fundamental rights of the appellant and no such conditions could have been imposed - the condition imposed by the High Court is quashed and set aside - appeal allowed.
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2024 (5) TMI 608 - SUPREME COURT
Seeking refund of chit amount deposited until stoppage of the business - illegal termination of the chit fund business and consequent non-refund of the subscription amount - deficiency of service - OP refused to re-pay the subscription amount since, according to it, the complainant owed certain dues to it and therefore, it adjusted the subscription amount against pending dues of the complainant.
The OP had raised a plea in its version that the complainant does not satisfy the definition of consumer since the service was obtained for a commercial purpose.
HELD THAT:- The significance of deconstructing the definition of consumer into three parts was for the purpose of explaining on whom lies the onus to prove each of the different parts. There can hardly be any dispute that the onus of proving the first part i.e. that the person had bought goods/availed services for a consideration, rests on the complainant himself. The carve out clause, in the second part, is invoked by the service providers to exclude the complainants from availing benefits under the Act. The onus of proving that the person falls within the carve out must necessarily rest on the service provider and not the complainant. This is in sync with the general principle embodied in Section 101 and 102 of the Evidence Act that ‘one who pleads must prove’. Since it is always the service provider who pleads that the service was obtained for a commercial purpose, the onus of proving the same would have to be borne by it.
Having held that the onus to prove that the service was obtained for a commercial purpose is on the service provider, we may clarify the standard of proof that has to be met in order to discharge the onus. The standard of proof has to be measured against a ‘preponderance of probabilities’. The test to determine whether service obtained qualified as a commercial purpose is no longer res integra in view of this Court’s decision in Lilavathi v. Kiritlal [2019 (11) TMI 1824 - SUPREME COURT]. Para 19 sets out the principles on which it must be determined whether the onus of proving ‘commercial purpose’ has been properly discharged by the service provider.
The question of inquiring into the third part will only arise if the service provider succeeds in crossing the second part by discharging its onus and proving that the service obtained was for a commercial purpose. Unless the service provider discharges its onus, the onus does not shift back to the complainant to show that the service obtained was exclusively for earning its livelihood through the means of self-employment. In the facts of this case, the OP has merely pleaded in its version that the service was obtained for a commercial purpose. No evidence has been led to probabilise its case other than merely restating its claim on affidavit. It is now well too settled that a plea without proof and proof without plea is no evidence in the eyes of law.
Appeal dismissed.
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2024 (5) TMI 518 - BOMBAY HIGH COURT
Dishonour of Cheque - liability created in favour of the Complainant by the Accused or not - MoU between the manufacturer and the retailer - The retailer issued multiple cheques to the distributor, which were subsequently dishonoured - presumption under Section 139 of NI Act was rebutted by the Accused - differences in the evidences - presumption of innocence in criminal trial - evidentiary value of evidence - proof of foundational facts for drawing of presumption under Section 139 of NI Act on the basis of available documents - HELD THAT:- The view of the trial Court is hyper technical view. The trial Court has overlooked the basic facts about the roles played by CW No. 1 and CW No. 2. The trial Court scrutinized their evidence by presuming that they are the witness to prove a particular fact only but in fact, they are the witness in respect of the facts forming transaction right from placing of the orders till filing of complaint. The trial Court overlooked the fact that the Complainant is not a natural person but an artificial entity working through natural persons and that too, in the office situated at different places. The trial Court decided the complaint as if the trial of bodily offences is being conducted.
The complaint under Section 138 of NI Act is based on the documents and proved by giving oral evidence. On some occasion, these complaints involve business transactions. It involves the correspondence in between the parties made in usual course. Such correspondence throws light on the intention of the parties. The trial Court overlooked the difference in relationship in between the H.P., and Kores, Kores and Ambitious and Ambitious and H.P., and Ambitious.
No doubt, Kores on behalf of H.P., was selling the products to the Sub-distributors. It is true that the MoU in between H.P., and Kores was not produced. There must be some financial terms. However, it is already observed the relationship in between Kores and Ambitious, stand on different footing. It is purely sale and purchase of products. Ambitious was getting some incentives from H.P. Ambitious was not satisfied - The MoU is restricted only to incentives by way of sale promotion and it has nothing to do with basic transaction of sale and purchase of products. This defence was taken by the Ambitious just to avoid a lawful payment to Kores. This finding is given on the basis of available documents and on the basis of documents not produced by the Ambitious including the Court litigation.
The cheques are the cheques within the purview of instruments. The instructions given for not depositing these cheques by Ambitious could not be substantiated by bona fide dispute with Kores. In fact, it was a dispute with the H.P. Coupled with this fact, no evidence was adduced to prove the sufficiency of amount in the account by Ambitious. The Kores have complied with the provisions of Section 138 of the NI Act relating to issuance of notice in time, receipt of notice and filing of complaint in time - the judgment of acquittal needs to be reversed - the Accused has committed offence punishable under Section 138 of the NI Act.
The order of conviction upheld - appeal allowed.
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2024 (5) TMI 517 - KARNATAKA HIGH COURT
Constitutional validity of para 83 of the EPF Scheme and para 43A of the Pension Scheme - international workers - grievance of the petitioners is that, under para 83 of the EPF Scheme, “international workers” are covered under the Act and Scheme, irrespective of their salary drawn by them. The employees other than the international workers, who draw exceeding Rs. 15,000/- per month is outside the purview of the Scheme.
HELD THAT:- Section 5 of the EPF & MP Act states that the Central Government may, by notification in the Official Gazette, frame a Scheme to be called the Employees’ Provident Fund Scheme for the establishment of provident funds under this Act for the employees or for any class of employees and specify establishments or class of establishments to which the said Scheme shall apply and they shall be established, as soon as, may be after the framing of the scheme, a Fund in accordance with the provisions of this Act and the Scheme.
On reading of Section 7 of the said Act, it is thus clear that the modification of the Scheme is a statutory power which the Central Government initially exercises and then the notification is placed before each of the houses of the parliament for its ratification - In the instant case, the Government of India has the power under Section 7(1) of the EPF & MP Act to modify the Scheme from time to time and the competence of the Central Government to introduce or modify the Scheme is apparent from Section 7 of the EPF & MP Act.
The aims and objects of introducing para 83 of the EPF Scheme as could be seen is, to protect the Indian employees going abroad to work from being subjected to the social security and the retirement clause of their post-country which are prejudicial to their interest and to motivate these countries for entering into such agreements with India and to make it happen is to provide for reciprocal treatment to the nationals of these countries while they work in India - Keeping in view the aims and objects of the main EPF & MP Act, when a ceiling amount of Rs. 15,000/- per month has been placed as a threshold for an employee to be a member to the scheme, para 83 of the EPF Scheme ought not to have an unlimited threshold for international workers while denying the same benefit to Indian workers. There being no commonality of interest of the aims and objectives of EPF & MP Act, 1952 and para 83 of EPF Scheme, para 43A of EP Scheme to be struck down as incompatible, arbitrary, unconstitutional and ultra vires.
Thus, there is discrimination between the Indian employees working in a non-SSA country (who are not international workers as per definition) and foreign employees from a non-SSA working in India who are classified as international workers. There is no rational basis for this classification nor there is reciprocity that compels to classify foreign employees from non-SSA countries as international workers - The introduction of para 80 and 81 under the Scheme in respect of working journalists and the cine employees cannot be equated with bringing international workers under the EPF Scheme. In the case of working journalists, considering the fact that they undergo a lot of risk on duty, the said amendment was made.
The introduction of para 83 of Employees’ Provident Fund Scheme and para 43A of Employees’ Pension Scheme are hereby struck down as unconstitutional and arbitrary and consequently, all the orders passed thereof are unenforceable.
Writ Petitions are allowed.
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2024 (5) TMI 458 - SUPREME COURT
Recovery of time-barred debt - extinguishment of debt or not - Use of the Haryana Public Moneys (Recovery of Dues) Act, 1979, and the State Financial Corporation Act, 1951, for recovering time-barred debts. - HELD THAT:- While the Court focused on the implication of a notification under Section 71 of the Kerala Revenue Recovery Act whereunder the Government could declare the Act applicable to any institution, the attention of the Court in STATE OF KERALA & ORS. VERSUS V.R. KALLIYANIKUTTY & ANR. [1999 (4) TMI 609 - SUPREME COURT] was not drawn to the powers envisaged under the State Financial Corporations Act which were also applicable to the recovery of debts in Kerala. As noticed above, the statement of objects and reasons of the State Financial Corporations Act refers to providing State Financial Corporations with ‘special privileges in the matter of enforcement of claims against borrowers’.
This Court in V.R. Kallliyanikutty held that the words ‘amounts due’ occuring in the Kerala Revenue Recovery Act would only include legally recoverable debts i.e. debts which are not time-barred.
The Court in K.C. Ninan [2023 (5) TMI 1251 - SUPREME COURT], after a comprehensive analysis of the scheme of the Electricity Act, held that the power to initiate proceedings to recover the electricity dues was independent of the power to disconnect electrical supply. Thereafter, the Court noticed the decision in V.R. Kalliyanikutty and concluded that statute of limitation only barred a remedy, while the right to recover the loan through ‘any other suitable manner provided’ remains untouched. Having so held, the Court rejected the argument of the auction purchasers and concluded that the bar of limitation under Section 56(2) of the Electricity Act would only restrict the remedy of disconnection under Section 56 of the Electricity Act and that the Electric Utilities were entitled to reocver electricity arrears through civil remedies or in exercise of its statutory power.
Thus, for a comprehensive consideration and an authoritative pronouncement after taking into account all aspects, including those dealt with hereinabove, the matter needs to be placed before the Hon’ble Chief Justice of India to constitute an appropriate three-judge bench.
Let the papers along with this order be placed before Hon’ble the Chief Justice of India for seeking appropriate directions from His Lordship, in this regard.
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2024 (5) TMI 457 - DELHI HIGH COURT
Dishonour of Cheque - vicarious liability of Executive Director - petitioner (resident Indian Director) was having control of the affairs of the company or not - Validity of summons issued by the Trial Court - HELD THAT:- In KK. AHUJA VERSUS VK. VORA [2009 (7) TMI 758 - SUPREME COURT] the Supreme Court highlighted the difference between the position of a Managing Director of the Company vis-à-vis an ordinary Director, as far as Section 141 of the NI Act is concerned, and held that if the accused is the Managing Director of a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company; Law presumes that the Managing Director is in charge of and is responsible to the company for the conduct of its business.
In National Small Industries Corporation Limited [2010 (2) TMI 590 - SUPREME COURT] the Supreme Court reiterated that if the accused is a Managing Director or Joint Managing Director, then it is not necessary to make specific averments in the complaint and by virtue of their position, they are liable to be proceeded with.
The submission of the petitioner that the petitioner has since resigned, also cannot make the petitioner escape his liability under Section 138 read with Section 141 of the NI Act, at this Stage. In S.P. Mani & Mohan Diary [2022 (9) TMI 846 - SUPREME COURT], the Supreme Court has held that different persons can be in-charge of the company when each of the series of acts of commission and omission essential to complete the commission of offence by the company were being committed. Therefore, “every person who was in charge of and was responsible to the company for the conduct of its business at the time any of the components necessary for the commission of the offence occurred may be “proceeded against”, but may not be “punished” if he succeeds in proving that the offence was committed without his knowledge and despite his due diligence; the burden of proving that remaining on him.
There are no merit in the present petitions. The same are dismissed.
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2024 (5) TMI 407 - SUPREME COURT
Reimbursement of additional expenditure incurred due to an increase in the rates of royalty and associated sales tax on soil, sand and crushed stone aggregates - Non-payment for executed work of embankment with soil/pond ash for the initial 150 mm depth stripped in accordance with the requirements of the contract - Reimbursement of additional costs incurred due to an increase in the forest transit fee rates - scope of interference in a petition under Section 34 of the Arbitration Act - HELD THAT:- This Court, in the case of UHL POWER COMPANY LTD. VERSUS STATE OF HIMACHAL PRADESH AND STATE OF HIMACHAL PRADESH VERSUS UHL POWER COMPANY LTD. [2022 (1) TMI 307 - SUPREME COURT] held that the jurisdiction of the Court under Section 34 is relatively narrow and the jurisdiction of the Appellate Court under Section 37 of the Arbitration Act is all the more circumscribed.
The Division Bench held that the imposition of a tax or upward revision of an already existing tax or levy through subsequent legislation is admittedly akin to the levy of additional royalty. The Division Bench relied upon a decision of the same Court in the case of the NATIONAL HIGHWAYS AUTHORITY OF INDIA VERSUS M/S ITD CEMENTATION INDIA LIMITED [2015 (4) TMI 1096 - SUPREME COURT]. The Division Bench in the impugned judgment held that the claim made on account of the increase in royalty, sales tax, forest transit fee, etc., was covered in favour of the respondent by the said decision.
Whether the claim for the construction of embankment forms part of the activity of clearing and grubbing and was not payable as embankment work? - HELD THAT:- The Division Bench held that nothing is shown that indicates that the construction of the embankment can be said to have been done in a manner where the lower part of the embankment is made only by carrying out the activity of backfilling. The High Court also noted that the appellant sought to make deductions after initially paying the amounts for the embankment. The Division Bench was right in holding that the majority opinion of technical persons need not be subjected to a relook, especially when the learned Single Judge had also agreed with the view taken by the Arbitral Tribunal.
The learned Single Judge and the Division Bench of the High Court have examined the challenge to the award within four corners of limitation imposed by Sections 34 and 37 of the Arbitration Act. The view taken by the Arbitral Tribunal, the learned Single Judge and the Division Bench cannot be found fault with.
There are no merits in the appeal - appeal dismissed.
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2024 (5) TMI 364 - SUPREME COURT
Right of the Bonafide purchasers - Auction sale held in favour of appellant - sale challenged on the ground that the Bank had not followed the statutory procedure prescribed under the Security Interest (Enforcement) Rules, 2002 - notice as required under Rules 8(6) and 8(7) had neither been issued nor served upon the borrower - HELD THAT:- In view of the concurrent finding based on the admission by the Bank that mandatory notice of 30 days was not given to the Borrower before holding the auction/sale, the setting aside of the auction/sale cannot be faulted with. The same has to be approved - Once the sale is set aside, the status of the appellants as owners would automatically revert to that of tenants. The status of possession at best could have been altered from that of an owner to that of tenants but Bank would not have any right to claim actual physical possession from the appellants nor would the appellants be under any obligation to handover physical possession to the Bank. The DRT fell in error on the said issue. Therefore, the direction issued by the DRT that the Bank will first take possession and thereafter refund the auction money with interest applicable to fixed deposits, is not a correct direction.
The entire controversy has arisen because of the Bank not following the prescribed mandatory procedure for conducting the auction sale and, therefore, the Bank must suffer and should be put to terms for unnecessarily creating litigation. As of date the dues of the Bank have been fully discharged and an additional amount of the auction money is lying with the Bank since 2009. This amount is to be returned to the appellants. In such facts and circumstances of the case, the award of interest on the auction money at the rate applicable to fixed deposits is not a correct view. The rate of interest deserves to be enhanced.
Thus, the setting aside of the auction sale is affirmed - status of the appellants as tenants shall stand restored leaving it open for the borrower as owner of the property to evict the appellants in accordance to law - entire auction/sale money lying with the Bank (R-1 & 2) shall be returned to the appellants along with compound interest @12 per cent per annum to be calculated from the date of deposit till the date of payment - Borrower Respondent nos.3 and 4 and the Bank–Respondent nos.1 and 2, would streamline their accounts and the Bank upon settlement of the same will issue a No Dues Certificate to the Borrower.
The impugned order is modified - appeal disposed off.
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2024 (5) TMI 322 - SUPREME COURT
Dishonour of Cheque - Cheating - wrongful retention of hard-earned money of the complainant - Compoundable offences - frustration of settlement - appellant could not pay the complainant on the deadlines stipulated in the said settlement - HELD THAT:- As per section 147 of the NI Act, all offences punishable under the Negotiable Instruments Act are compoundable. However, unlike Section 320 of CrPC, the NI Act does not elaborate upon the manner in which offences should be compounded. To fill up this legislative gap, three Judges Bench of this Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], passed some guidelines under Article 142 of the Constitution of India regarding compounding of offence under Section 138 of NI Act. But most importantly, in that case, this Court discussed the importance of compounding offence under Section 138 of the NI Act and also the legislative intent behind making the dishonour of cheque a crime by enacting a special law.
This Court has time and again reiterated that in cases of section 138 of NI Act, the accused must try for compounding at the initial stages instead of the later stage, however, there is no bar to seek the compounding of the offence at later stages of criminal proceedings including after conviction, like the present case - In the case at hand, initially, both sides agreed to compound the offence at the appellate stage but the appellant could not pay the amount within the time stipulated in the agreement and the complainant now has shown her unwillingness towards compounding of the offence, despite receiving the entire amount. The appellant has paid the entire Rs.1.55 crore and further Rs.10 lacs as interest.
In the present case, the appellant has already been in jail for more than 1 year before being released on bail and has also compensated the complainant. Further, in compliance of the order dated 08.08.2023, the appellant has deposited an additional amount of Rs.10 lacs. There is no purpose now to keep the proceedings pending in appeal before the lower appellate court. Here, we would like to point out that quashing of a case is different from compounding - if the continuance of criminal appeals pending before Additional Sessions Judge against the appellant’s conviction, is allowed then it would defeat all the efforts of this Court in the last year where this Court had monitored this matter and ensured that the complainant gets her money back.
It is a fact that the appellant failed to procure and supply the ‘machine’ even after taking the advance money from the complainant but there is nothing on record to show that the appellant had any ill intention of cheating or defrauding the complainant from the very inception. The transaction between the parties was purely civil in nature which does not attract criminal law in any way - Even though complainant is unwilling to compound the case but, considering the totality of facts and circumstances of the present case which we have referred above, we are of the considered view that these proceedings must come to an end.
The impugned order is set aside - appeal allowed.
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2024 (5) TMI 270 - CHHATTISGARH HIGH COURT
Challenged the impugned judgment of conviction and order of sentence - Power to seize and arrest of a person in a public place - Smuggling - transportation of Ganja from truck - non-availability of documents - Seizure - Offence punishable u/s 28 read with 20 (b)(ii) (C) and Section 29 read with 20 (b)(ii) (C) of the NDPS Act - conviction based solely on the purported confessional statement recorded u/s 67 of the NDPS Act - Whether Section 42(1) of the NDPS Act has been complied with in its letter and spirit or not? - HELD THAT:- Perusal of the notices shows that Central Government has empowered the Intelligence Officer of the Revenue Intelligence Directorate under the crime relating to Act in their regional jurisdiction. In the instant case, K.V.L Narasimham (PW-11) has conducted the proceeding of the case under his regional jurisdiction and it is accordingly established.
In any case, it is important that the drug seized in the case should be kept safe and secure and the process of extracting the sample from it should be done duly and the sample should also be sent to a competent laboratory under proper custody. In the present case, the process of sealing the seized drug and keeping it in a safe in godown and taking out the sample has also been found to be legal and the sample taken out has also been found to be sealed and sent for testing legally. At any stage of the case, no tampering has been found in the drug samples or the seized packets, hence, the entire case cannot be considered unbelievable merely on the basis of samples being taken at the CGST Bhawan. Therefore, this Court is of the view that there has been proper compliance of Section 43 of the NDPS Act and the Investigator on the information of the informant, intercepted the vehicle wherein 6545 Kgs Ganja was kept and appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh were present in the said truck. Thus, in the opinion of this Court, the prosecution has proved its case in respect of appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh. Thus, the trial Court has rightly convicted and sentenced them.
Statement recorded u/s 67 by the IO (PW-11) naming Appellants-Vishnu Bhadra and Premanand is not admissible because there is no corroborative evidence or other evidence on record, therefore, statement u/s 67 of the NDPS Act is a weak type of evidence in the instant case.
Whether Appellant Vishnu Bhadra and Premanand were involved in the said crime or not? - We are of the view that the case of the prosecution in respect of Appellant Vishnu Bhadra and Premanand is not proved beyond all reasonable doubts. In the result, Cr.A. on behalf of appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh are devoid in merits and liable to be and are hereby dismissed. The said appellants are stated to be in jail. They shall serve out the sentenced awarded to them by the Trial Court.
So far as Cr.A. filed on behalf of Appellants-Vishnu Bhadra and Premanand is concerned, it is hereby allowed.
Accordingly, the conviction and sentence awarded to the Appellants-Vishnu Bhadra and Premanand by the trial Court is hereby set-aside. The Appellants-Vishnu Bhadra and Premanand are acquitted of the charges framed against them. The Appellants-Vishnu Bhadra and Premanand are in jail. They shall be set at liberty forthwith if no longer required in any other criminal case.
Keeping in view the provisions of Section 437-A of the CrPC, the Appellants-Vishnu Bhadra and Premanand, are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- each with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.
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2024 (5) TMI 187 - JHARKHAND HIGH COURT
Dishonour of Cheque - insufficient funds - discharge of legal liability - rebuttable presumption - conviction of accused u/s 138 of the N. I. Act - suspicious transaction - HELD THAT:- It has been held by the Hon’ble Supreme Court and the Jharkhand High Court on various occasions that payment of friendly loan without giving any specific date or dates to the accused petitioner in absence of any witness led to suspicious transaction.
It has been held by Hon’ble the Supreme Court in the case of Rajaram Through L.Rs. Versus Maruthachalam [2023 (1) TMI 794 - SUPREME COURT] that 'the standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the learned Trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances.'
The Supreme Court has also held that the issuance of blank cheque with signature only by the accused may not go in favour of the holder of the cheque, i.e. the complainant.
Thus, it is evident that opposite party no. 2 had rebutted the presumption in light of the Section 139 of the N. I. Act.
Therefore, this Court finds that no illegality has been committed by the learned Appellate Court below while coming to the conclusion that the petitioner had no financial capacity to pay loan amount to the opposite party no. 2 and thus, this Criminal Revision is devoid of merit - the criminal revision is dismissed.
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2024 (5) TMI 121 - DELHI HIGH COURT
Dishonour of Cheque - vicarious liability of the petitioner in terms of Section 141 NI Act - Company Secretary of the company - The CS was never a Director of the Accused Company - In-charge of the day-to-day affairs of the company or not - exact role of the petitioner in the accused company and her consequent liability for the offence under Section 138 NI Act - HELD THAT:- The petitioner was employed in the company as a Company Secretary. Once the same is established, the question that arises for consideration is whether the petitioner can be made vicariously liable in terms of Section 141 NI Act. A perusal of the subject complaints would show that nowhere in the said complaints has the respondent averred that the petitioner was in-charge of, and responsible for the conduct of the business of the company. The word ‘in-charge of a business’ has been interpreted to mean a person having overall control of the day-to-day business of the company.
In the ordinary course of business, it cannot be said that the petitioner, who was acting as a Company Secretary, would be in-charge of the day-to-day affairs of the company, as required in terms of Section 141(1). Thus, the petitioner cannot be vicariously liable in terms of Section 141(1).
In view of the facts of the present case including the fact that the petitioner was employed as a Company Secretary in the accused company as well as the position of law w.r.t Section 141 NI Act and the application of the same to the subject complaints, it can be observed that the subject complaints are bereft of the adequate averments against the petitioner alleging the Petitioner’s involvement in the conduct of the business of the Company beyond her statutory role as a Company Secretary, more particularly, in relation to the transaction pursuant to which cheque in question was issued. Neither, is there any averment that the offence has been committed with the consent or connivance of is attributable to any neglect on the part of the Petitioner, so as to potentially make her liable under Sub-section (2) of Section 141.
There is no cavil with the proposition of law stated in the decisions cited by the respondent but in the absence of appropriate and adequate averments against the petitioner, and the fact that Petitioner’s impleadment can only be in her capacity as a Company Secretary, the continuation of proceedings against the petitioners would be nothing but an abuse of the process of law.
The present petitions are allowed and the criminal complaints filed under Section 138 read with Section 141 NI Act are quashed qua the petitioner.
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2024 (5) TMI 120 - SUPREME COURT
Maintainability of writ petition - time limitation - time limitation ought to have been dismissed on the ground of delay and latches itself or not - Whether the writ court was justified in entertaining the writ petition filed by the Respondent No. 1 herein challenging the approval dated 03.06.2014 granted in favour of the Appellant herein for starting LPG distributorship at Jamalpur, District Burdwan? - HELD THAT:- An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers Under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.
There being no stiff opposition or strong resistance to the alternate land offered by the Appellant herein not being as per the specifications indicated in the advertisement, there are no reason to substitute the court's view to that of the experts namely, the Corporation which has in its wisdom has exercised its discretion as is evident from the report filed in the form of affidavit by the territory manager (LPG)/ BPCL.
The order of the Learned Division Bench is liable to be set aside and accordingly, it is set aside - Appeal allowed.
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2024 (5) TMI 60 - SUPREME COURT
Smuggling - Non-Compliance with Mandatory Procedure under Section 42 of the NDPS Act - Violation of Section 50 - search and seizure proceedings by panch witness - delivering contraband/illicit substance - conviction of the accused as recorded by the trial Court and affirmed by the High Court - HELD THAT:- The contention of learned counsel for the appellants that the search and seizure was undertaken without associating an independent witness is untenable on the face of record. Manubhai(PW-1), the panch witness associated in the search and seizure proceedings was serving in the Income Tax Department and hence by no stretch of imagination, can it be accepted that the witness was a stock witness of the NCB or was an interested witness. Manubhai(PW- 1) in his sworn testimony proved the recovery panchnama(Exhibit P-30) and also fully supported the prosecution case regarding the search and seizure of contraband effected from Anwarkhan(A-1). Nothing significant could be elicited by the defence in the prolonged cross-examination undertaken from Manubhai(PW-1) and hence, there are no hesitation in holding that the evidence of Manubhai(PW-1) being the panch witness associated in the search and seizure effected from Anwarkhan(A-1) is reliable and trustworthy. Thus, it is well established that independent panch witness was associated in the search and seizure procedure.
Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected.
The fact regarding the seizure of contraband narcotic drug, i.e., heroin/brown sugar weighing 2 kgs and 30 grams from the possession of Anwarkhan(A-1) has been duly established by the prosecution beyond all manner of doubt. The link evidence required to prove the sanctity of the sampling and transmission of the samples to the Chemical Analyst is also sacrosanct. The search and seizure procedure is free from all doubts.
The prosecution has duly proved the guilt of Anwarkhan(A-1) beyond all manner of doubt by leading convincing and satisfactory evidence. - There is no dispute that no contraband substance was recovered from the possession of appellant Firdoskhan(A-2).
The conviction of Firdoskhan(A-2) as recorded by the trial Court and affirmed by the High Court cannot be sustained and he deserves to be acquitted by giving him the benefit of doubt - Appeal filed by appellant Anwarkhan(A-1) lacks merit and is hereby dismissed - appeal preferred by appellant Firdoskhan(A-2) is allowed.
Appeal allowed in part.
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2024 (5) TMI 59 - SUPREME COURT
Permission to 1st and 2nd respondents (writ petitioners) to construct a compound wall under police protection - the senior district-level officials of the State had stated on oath that the construction of the compound wall, would affect the rights of several third parties.
HELD THAT:- The Court completely ignored the oath. Even in clause 6 (iii) of the “Minutes of Order”, there was enough indication that the compound wall, if not appropriately constructed, would affect the rights of owners of the other lands. Therefore, it was the duty of the Court to have called upon the 1st and 2nd respondents to implead the persons who were likely to be affected. The 1st and 2nd respondents could not have pleaded ignorance about the names of the concerned parties as they have referred to the owners of the other lands in the “Minutes of Order". However, the Division Bench of the High Court has failed to make even an elementary enquiry whether third parties will be affected by the construction of the compound wall under police protection. Hence, the order passed in the Writ Petition in terms of the “Minutes of Order” is entirely illegal and must be set aside. The Writ Petition will have to be remanded to the High Court to decide the same in accordance with the law.
Matter restored to the file of the High Court - the Registrar (Judicial) of the Bombay High Court is directed to list the restored Writ Petition before the roster Bench on the first day of re-opening of the Court after the ensuing summer vacation - appeal allowed in part,
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