dishonour of cheque Archives

Daughter-in-law accuses father-in-law of offence under S. 138 NI Act. Here’s the detailed account of whether father-in-law gave the cheque to daughter-in-law or was it taken without his knowledge || Saket District Court decides

Saket District Court, Delhi: Sonam Singh, MM (NI Act) acquitted the accused who was charged with an offence under Section 138 of the Negotiable Instruments Act, on finding that he raised sufficient doubt about the existence of a legally sustainable liability.

Factual Background

Complainant was the daughter-in-law of the accused. She alleged that in August 2020, the accused who was her father-in-law promised to pay her maintenance of Rs 45,000 every month for his grandson.

Further, she alleged that in lieu of the promised amount he handed over a cheque. On not receiving the amount in her bank account, she enquired with the bank and got to know that initially the cheque was cleared but due to the accused being hand-in-glove with certain officials from the said bank, the amount of Rs 45,000 which was credited in her account was subsequently debited from her account.

Complainant alleged that since she suspected that the accused had cheated her, she requested the bank to disclose the status of her cheque and after much inconvenience, the bank told her that due to the difference between words and figures written on the cheque, it was wrongly cleared by them initially.

Adding to the above allegations, she also stated that the amount was debited from her account as the accused had conspired with the bank official and alleged that she was appalled when she got to know that the cheque was dishonored on the ground of “CHEQUE IRREGULARLY DRAWN/AMOUNT IN WORDS AND FIGURES DIFFERS” and further on contacting the accused, he refused to pay the amount of cheque in question.

It was also alleged by her that she got to know from the Bank that the accused had personally asked the bank to stop the payment of the cheque in question and he had deliberately written the wrong amount in words on the cheque.

Since the accused did not pay the complainant within 15 days of service of legal notice, the present complaint was filed seeking prosecution of the accused of the offence punishable under Section 138 NI Act.

Analysis, Law and Decision

After referring to the provisions of Negotiable Instruments Act, Bench referred to the Supreme Court decision in Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745, wherein the Court discussed the conditions of Section 138 NI Act which are to be fulfilled for a cause of action to arise in favour of the complainant.

Court expressed that,

The object underlying Section 138 of the NI Act is to promote faith in the efficacy of the banking system and give credibility to negotiable instruments, in business transactions. The intention is to punish those unscrupulous persons, who issued cheques for discharging their liabilities, without really intending to honour the promise.

Issues in the present matter:

Service of legal demand notice
Cheque being valid and return memo being fabricated
Whether the cheque in question can be said to have been issued in discharge of a legally enforceable debt or liability or not

Service of legal demand notice

Court stated that considering the presumption of due service, the accused was under an obligation to lead evidence to prove that the notice was not served on him. However, he has failed to bring any evidence to rebut the presumption of due service of legal demand notice.

Mere denial of not receiving the legal demand notice would not amount to proving his defence.

Validity of Cheque and genuineness of the return memo

It was proved that the cheque was dishonoured on the instructions of the accused who gave instructions to the bank to reverse the entry, admitted by him in his statement under Section 313 CrPC.

The Court witness brought a letter issued by the bank that erroneously the cheque number mentioned in the return memo dated 11.09.2020 was 682148 instead of 682146. He further explained in his cross-examination conducted by the counsel for the complainant that the typographical mistake of the cheque number in the return memo is a “clerical mistake and should not have occurred.”

Accused did not bring any evidence to show that there was any conspiracy between the complainant and the bank to issue a fabricated return memo. The Bench stated that it was relevant to note that the accused had admitted having signed the cheque on a bank account maintained in his name and filled all the particulars of the cheque except the name of the complainant.

Question of Liability

It is well-settled position of law that when a negotiable instrument is drawn, two statutory presumptions arise in favour of the complainant, one under Section 139 NI Act and another under Section 118(a) of the NI Act, which is a presumption of the cheque having been issued in discharge of legal liability and drawn for good consideration, arises.

Bench observed that it is explicit that on proof of foundational facts, the Court will presume that cheque was made or drawn for consideration and that it was executed for discharge of debt or liability, once the execution of negotiable instrument is either proved or admitted and the burden of proof lies upon the accused to rebut the said presumption.

This is an example of the rule of ‘reverse onus’ in action, where it is an obligation on the accused to lead what can be called ‘negative evidence’. The accused is not to prove a fact affirmatively, but to lead evidence to demonstrate the non-existence of debt or liability. Since, this rule is against the general principle of the criminal law of ‘presumption of innocence in favour of the accused’ and considering that such negative evidence, by character is difficult to lead, the threshold for the accused to rebut the presumption is on the scale of the preponderance of probabilities.

Court opined that, in the present matter, the accused succeeded in rebutting the presumption of legal liability, by exposing the inherent improbability of the case of the complainant.

Bench stated that, the improbability of the complainant’s story was further manifest from the fact that she had not filed any case for maintenance and only a case under DV Act had been filed. She failed to bring on record any document or court order to show that the accused promised her the maintenance of Rs 45,000 for his grandson.

Further, the accused, in his defence had argued that the cheque was not handed over to the complainant. In his statement under Section 313 CrPC, he stated that only when he received a message from his bank that an amount of Rs 45,000 was debited from his account, then he contacted his bank and told the bank he had not issued any such cheque. Any reasonable man would do as what accused did and direct his bank to stop the payment or reverse the entry.

The reason for not filing a police complaint with respect to misuse of the cheque by the accused was not filed as the complainant was his daughter-in-law and in Court’s opinion the said explanation was believable as the same could have caused him social embarrassment.

Conclusion

Accused raised sufficient doubt about the existence of a legally sustainable liability, which the complainant failed to prove after the onus shifted on her and therefore the end result was that the accused was acquitted of offence under Section 138 NI Act.

In view of the above complaint was dismissed. [Shakun Singh v. Chandeshwar Singh, CC No. 397 of 2020, decided on 24-12-2021]

Case Briefs High Courts

[S. 138 NI] Telangana HC | A joint account holder cannot be prosecuted unless and until he/she is a signatory to subject cheque

Telangana High Court: Shameem Akhter J. allowed criminal petition and quashed the proceedings against the petitioner/A.2 on the ground that it is only the drawer of the cheque who can be proceeded.

The instant Criminal under Section 482 of the Code of Criminal Procedure, 1973 i.e. ‘Cr.P.C.’ was filed by the petitioner seeking to quash the proceedings against her on the file of VII Special Metropolitan Magistrate, Ranga Reddy District, at Hastinapur and on the file of XiI Special Metropolitan Magistrate, Ranga Reddy District, at Hastinapur, respectively.

Counsel for petitioner submitted that the petitioner, who is arrayed as A.2 in the subject C.Cs, is not a signatory to the subject cheques and she is falsely implicated in the subject C.Cs. No ingredients constituting the offence under Section 138 of Negotiable Instruments Act, 1881 (i.e. “N.I.Act”) are made out against the petitioner/A.2 and therefore, continuation of proceedings against the petitioner/A.2 is nothing but abuse of process of law

Counsel for respondent submitted that petitioner is not a signatory to the subject cheques but is aware of the money transactions and handing over of the subject cheques’. It was further submitted that the petitioneris maintaining joint account with her husband i.e, A1 and the subject cheques relate to the said joint account only. The petitioner has knowledge of the subject transactions and most of the amounts were paid to her account only. Thus, the Courts rightly took cognizance of the offence under Section 138 of Negotiable Instruments Act i.e. N.I. Act against the petitioner/A2 along with A1.

The Court observed that as per the mandate given under Section 138 of N.I Act, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence.

The Court observed that in the instant case, it is evident from the entire material placed on record, particularly, the complaints filed by the respondent 2/complainant under Section 138 of N.I. Act r/w Sec.200 Cr.P.C, the petitioneris merely a jolnt account holder and she is not the signatory to the subject cheques.

It was further observed that though the account relating to the disputed cheques is a joint account, only one signature, which appears to be of A1, are seen on those disputed cheques. Penal provisions should be construed strictly, but not in a routine/casual manner. The words used in Section 138 of N.I.Act that “such person sha, be deemed to have committed an offence,, refers to a person who has drawn the cheque, but not any other person, except the contingencies mentioned under Section 141 of the N.I.Act. Hence, petitioner/A2, who is a mere joint account holder but not a signatory to the subject cheque, cannot be proceeded under Section 138 of N.I.Act, merits consideration, inasmuch as a joint account holder cannot be prosecuted, unless and until he/she is a signatory to the subject cheque.

The Court held “when no ingredients under section 138 of N.I.Act are made out against the petitioner/A.2, continuation of the subject proceedings against the petitioner/A.2 is abuse ot process of law. Therefore, the proceedings in the subject C.Cs against the petitioner/A.2, are liable to be quashed.”

[Kodam Danalakshmi v. State of Telangana, 2021 SCC OnLine TS 1431, decided on 29-10-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case Briefs District Court

Court holds accused guilty under S. 138 NI Act where he failed to rebut statutory presumption even when complainant didn’t produce documentary evidence to prove debt

XVIII Addl. Chief Metropolitan Magistrate, Bengaluru City: Manjunatha, XVII Addl. C.M.M., found the accused guilty for the offence under Section 138 of the Negotiable Instruments Act, on his failure to rebut the statutory presumption in favour of the holder of cheque.

Background

The complainant had filed the instant complaint under Section 200 of Code of Criminal Procedure read with Section 138 of the Negotiable Instruments Act against the accused alleging that, she had committed the offence punishable under Section 138 NI Act.

Complainants and the accused were well known to each other as they were residing in the same locality and in 2018, the accused had approached the complainant for a loan of Rs 4,00,000 for the purpose of urgent legal and domestic necessities and promised to repay the same within 6 months.

Considering her request the complainant had paid Rs 4,00,000 to the accused by way of cash.

The accused and her husband had executed an undertaking by acknowledging the receipt of the amount, but she failed to keep up her promises. On repeated demand and request, the accused issued a cheque but the same was returned unpaid with an endorsement “Funds Insufficient” in the drawer’s account.

Further, despite the notice, the accused had not paid the cheque amount and thereby she had committed an offence punishable under Section 138 NI Act.

Court had issued summons and later, the accused was enlarged on bail.

As per the direction of the Supreme Court in Indian Bank Assn. v. Union of India, (2014) 5 SCC 590, this Court treated the sworn in statement of the complainant as complainant evidence.

Analysis, Law and Decision

Court cited the decision of Sukur Ali v. State of Assam, (2011) 4 SCC 729, in which the Supreme Court opined that even assuming that the counsel for the accused does not appear because of the counsel’s negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused.

In the decision of K.S. Panduranga v. State of Karnataka, (2013) 3 SCC 721, Supreme Court held that, “regard being had to the principles pertaining to binding precedent, there is no trace of doubt that the principle laid down in Mohd. Sukur Ali (supra) by the learned Judges that the court should not decide a criminal case in the absence of the counsel of the accused as an accused in a criminal case should not suffer for the fault of his counsel and the court should, in such a situation, must appoint another counsel as amicus curiae to defend the accused and further if the counsel does not appear deliberately, even then the court should not decide the appeal on merit is not in accord with the pronouncement by the larger Bench in Bani Singh” .

The Court further held that in view of the aforesaid annunciation of law, it can safely be concluded that the dictum in Mohd. Sukur Ali (supra) to the effect that the court cannot decide a criminal appeal in the absence of counsel for the accused and that too if the counsel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by the larger Bench in Bani Singh (supra), is per incuriam. Furthermore, the transaction alleged in the case is purely a commercial transaction enetered into between two private individuals and the accused is not in judicial custody and he is not fall under any of the parameter under legal services authorities Act to get free legal aid. Under such circumstance question of appointing advocate for accused at the state cost may not arise at all.”

Question for Consideration:

Whether the complainant proves that, accused issued cheque for Rs 4,00,000 towards discharge of her liability, which was returned unpaid on presentation for the reason “Fund Insufficient” and despite of notice she had not paid the cheque amount and thereby committed an offence punishable under Section 138 of NI Act?

Analysis, Law and Decision

Court stated that, Sections 118 and 139 of NI Act raises a presumption in favour of the holder of the cheque that he had received the same for discharge in whole or in part of any debt or other liability.

Further, it was added that the accused can take probable defence on the scale of the preponderance of probability to rebut the presumption available to the complainant.

Whether the accused had successfully rebutted the said presumptions of law?

Court observed that the accused had not disputed the issuance of cheque and her signature in the cheque.

When the drawer has admitted the issuance of the cheque as well as the signature present therein, the presumptions envisaged under section 118 read with section 139 of NI Act, would operate in favour of the Complainant.

The Bench added that the above-said provisions laid down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder the court shall presume that the instrument was endorsed for consideration.

“…when the complainant has relied upon the statutory presumptions enshrined under section 118 read with section 139 of NI Act, it is for the accused to rebut the presumptions with cogent and convincing evidence.”

It is worth noting that, Section 106 of Indian Evidence Act postulates that, the burden is on the accused to establish the fact which was especially within his special knowledge.

Hence, the burden is on the accused to prove that the cheque in question was not issued for discharge of any liability.

With regard to proof of existence of legally enforceable debt was concerned, Court referred to the decision of Supreme Court in Rangappa v. Mohan, (2010) 11 SCC 441, wherein it was observed that,

“In the light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by section 139 of the Act does indeed include the existence of the legally enforceable debt or liability”

In another decision in, T. Vasanthakumar v. Vijayakumari, (2015) 8 SCC 378, it was held that once the accused has admitted the issuance of Cheque, as well as signature on it, the presumption under Section 139, would be attracted.

In the present matter, despite giving sufficient time, the accused neither led defence evidence nor cross-examined PW1, therefore the evidence placed by the complainant remained unchallenged and there was no reason to disbelieve the version of the complainant.

The complainant had not produced any document regarding the lending of the amount to the accused, but in the absence of any contrary evidence, the unchallenged testimony of the complainant had to be believed. As such there was no rebuttal evidence on behalf of the accused to rebut the presumption available under Sections 118 and 139 of the NI Act.

Therefore, the complainant’s case was acceptable.

The complainant proved that, for discharge of liability accused had issued a cheque and she had intentionally not maintained a sufficient amount in her account to honour the said cheque.

In view of the above discussion, the complainant had proved the guilt of the accused punishable under Section 138 NI Act.

Supreme Court in a decision of H. Pukhraj v. D. Parasmal, (2015) 17 SCC 368, observed that having regard to the length of the trial and date of issuance of cheque, it was necessary to award reasonable interest on the cheque amount along with cost of litigation.

The Bench held that rather than imposing punitive sentence if sentence of fine is imposed with a direction to compensate the complainant for its monetary loss, by awarding compensation under Section 357 CrPC, would meet the ends of justice.

Lastly, Court opined that it was just and proper to impose fine of the amount of Rs 4,55,000 which included interest and cost of litigation. [N. Muniraju v. Manjula, Criminal Case No. 25494 of 2019, decided on 1-1-2022]

Advocates before the Court:

For the complainant: S.K

For the accused: G.V.K

Case Briefs High Court Round Up High Courts Legal RoundUp

Delhi High Court’s Exhaustive Year-End RoundUp | Amazon v. Future Retail, Rakesh Asthana’s appointment, Feeding of Stray Dogs, 5G Technology, Delhi Riots & more

From major rulings like Amazon v. Future Group to 22 Guidelines on Feeding of Stray Dogs, Delhi High Court delivered some very significant decisions and to get a run through of them check out this complete roundup of the year 2021.

Top Stories of the Year | Delhi High Court

Right to be Forgotten

Can a Court Order be removed from Online Platforms? HC to examine Right to Privacy and Right to Information of the Public and Maintenance of Transparency

Prathiba M. Singh, J., while citing the scope of Right to Privacy and Right to be Forgotten granted interim protection in light of the same in the present matter.

Public place

Vehicle even if occupied by only one person would constitute a ‘public place’ and wearing of mask therein would be compulsory

A vehicle which is moving across the city, even if occupied at a given point in time by one person, would be a public place owing to the immediate risk of exposure to other persons under varying circumstances. Thus, a vehicle even if occupied by only one person would constitute a ‘public place’ and wearing of a mask therein, would be compulsory.

Emergency Arbitrator

[Amazon v. Future Retail] From Emergency Arbitrator to Group of Companies Doctrine – Delhi HC covers all while restraining Future Group from proceeding further with Disputed transaction

In the notable ruling of Amazon v. Future Retail, J.R. Midha, J. of Delhi High Court considered three crucial questions:

♦ What is the legal status of an Emergency Arbitrator?

♦ Whether the Emergency Arbitrator misapplied the Group of Companies doctrine which applies only to proceedings under Section 8 of the Arbitration and Conciliation Act?

♦ Whether the interim order of Emergency Arbitrator is Nullity?

Content Regulation

Content Regulation has been a contested issue across the world. Read HC’s stance & directions in Disha Ravi’s plea alleging leaking of her messages, etc. by Police

Prathiba M. Singh, J., while addressing the matter concerning the environmental activist, Disha Ravi, expressed that:

The print and electronic media plays a very important role in ensuring that there is no sensationalism and that they adhere to responsible journalism. Recent coverage by the media definitely shows that there is sensationalism.

Rakesh Asthana’s Appointment

Rakesh Asthana’s appointment as Commissioner of Delhi Police challenged | Read Why Del HC upheld Centre’s decision

It ought to be kept in mind that Delhi, being the Capital of India, has a unique, special and specific requirement. It has witnessed several untoward incidences and extremely challenging law and order situations/riots/crimes, which have an international implication, which in the wisdom of the Central Government necessitated appointment of an experienced officer possessing diverse and multifarious experience of heading a large Para-Military Security Force apart from other factors.

Read more…

Feeding of Stray Dogs

Stray Dogs have right to food and citizens have right to feed | Indispensable 22 Guidelines on Feeding of Stray Dogs [Momentous Ruling]

J.R. Midha, J., in a very significant ruling issued guidelines with regard to the feeding of stray dogs and directions for their welfare.

Read more…

Payment of Full Wages

If Labour Court orders reinstatement and employer challenges the said order, is workman entitled to payment of full wages during pendency of challenge by employer? Del HC explains in consonance of Industrial Disputes Act

There is no provision for appeal provided in the Industrial Disputes Act against the decision of a labour court, which is in the form of an award.

Divorce

Does failure to disclose mental disorder before marriage constitute perpetration of fraud so as to grant divorce? Del HC decides

“Marriage is not made of only happy memories and good times, and two people in a marriage have to face challenges and weather the storm together.”

Maintenance

“Many a times wives sacrifice their career only for family” Can interim maintenance be denied if wife is capable of earning? Del HC elaborates

“…the fact that the wife is capable of earning is no ground to deny interim maintenance to her. Many a times wives sacrifice their career only for the family.”

Can magazine covers be sufficient evidence to explain that wife who is a model can sustain herself? HC addresses while deciding a Maintenance matter

It is the duty of the husband to maintain his wife and to provide financial support to her and their children. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes.

While calculating husband’s income for granting maintenance to wife, can husband’s mother who receives her independent pension and rental income be counted as a dependant to be maintained by husband? HC explains

Suresh Kumar Kait, J., while addressing a criminal revision petition concerning a matrimonial dispute expressed that:

“..husband cannot wriggle out of his responsibilities to provide shelter to his wife and minor children.”

Wife denied enhancement of maintenance due to being wealthier than husband

Suresh Kumar Kait, J., dismissed a petition seeking enhancement of maintenance granted to a wife.

Settlement

Husband, his family harass wife for dowry leading to her committing suicide. Can settlement between accused and wife’s father be accepted? Court decides

Mukta Gupta, J., decided whether a settlement of parties wherein an accused and his family members who subjected his wife to harassment due to which the wife committed suicide can be accepted or not?

Dishonour of Cheque

Is it mandatory for trial court to award interim compensation under S. 143-A NI Act on mere invocation thereof? Del HC decides whether S. 143-A is directory or mandatory?

Anu Malhotra, J., held that the provision of Section 143A of the NI Act, 1881 is directory in nature and not mandatory.

Read more…

Maintenance

Del HC discusses law on alternative jurisdictions for institution of application and execution of maintenance orders under S. 125 CrPC, directs fresh adjudication of execution petition

Court makes available the option to the wife to proceed before a Court for maintenance and its execution where either the husband is, or where either of the parties resides as well as the place where they used to reside.

Unnatural Sexual Offences

‘To sexually violate innocent child within filial relationship descends on different path of depravity’: Del HC convicts father, friend under S. 377 IPC; emphasises on ingredients of ‘carnal intercourse against the order of nature’

The Division Bench of Siddharth Mridul and Anup Jairam Bambhani, JJ., while addressing a very unfortunate incident, involving sexual offences to the extent of rape and carnal intercourse with a child, expressed that,

“…to sexually violate an innocent child is in any case an abhorrent act; but, when that happens within the filial father-daughter relationship, of which purity of affection is a sine-qua-non, the act descends to a different depth of depravity.”

Shared Household

Daughter-in-law claims right of residence in late husband’s mothers’ property under the head ‘Shared Household’: Mother-in-law approaches Del HC seeking eviction of daughter-in-law

Explaining the significance of ‘shared household’ Asha Menon, J., explained that where a residence is clearly a shared household, it would not bar the owner from claiming eviction against her daughter-in-law, if circumstances call for it.

‘Permanency’ as an element of ‘Shared Household’ concept under Domestic Violence Act: Can old-aged parents-in-law be restrained from selling their house in light of shared household consequences?

Suresh Kumar Kait, J., dealt with the provisions in regard to the concept of the shared household while referring to a very pertinent decision of the Supreme Court.

Role of an Advocate

If an advocate has appeared for a party in judicial or quasi-judicial capacity or even as a mediator, Can Court injunct him from appearing to maintain stream of justice? Del HC expounds in clear worded decision

While expressing its opinion on the position of an advocate in law, C. Hari Shankar, J., expressed that,

There is, after all, a duty that we all owe, to ourselves, higher than that owed to the client, the brief, the opposite party, or even the court. The conscience of the Counsel should be the last sounding board.

An advocate engaged by a client, can he also act as his power of attorney in the proceedings and verify pleadings?

Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

Read more…

Trademark Registration

“And Then There Were None”: Agatha Christie’s most famous work in Del HC for trademark registration | Succinct Report

“…name being the title of the most well-known work of fiction written by Agatha Christie, it is also capable, prima facie, of creating an association between the name and the appellant, which is a company established by Agatha Christie herself. It can, therefore, legitimately be used in the context of services which the said company provides or intends to provide.”

POCSO Act

‘Purpose of POCSO Act is to treat minors as a class by itself so that an attempt to abuse minor entails graver consequences’: Del HC stresses upon purpose of POCSO Act

While observing that, rape is an offence which not only violates the physical body of the survivor but is also capable of inflicting trauma on the mental psyche which can end up persisting for years, Subramonium Prasad, J., keeping in mind the nature of the offence, expressed that it inhabits a duty to consider such matters with utmost care.

Role of a Family Judge

Family Judge is supposed to proactively engage with parties and act as facilitator, mediator: HC discussed role of and expectations from a Family Judge

Yashwant Varma, J., delved into the subject of the role of a Family Judge while deciding petitions which come before him/her. The High Court in the instant petition directed the Family Court to consider the petition filed for maintenance under Section 24 of the Hindu Marriage Act.

Matrimonial Dispute

Matrimonial issues are generally confined to the bedroom and the matrimonial home, away from public eye and gaze: Will strict parameters of evidence still be followed? Read Del HC’s decision

While addressing a matrimonial dispute, Division bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

In cases where there are allegations of cruelty – specially mental cruelty such as Dowry Demand, violent abusive behaviour, starving the spouse of affection, resources and emotional support, there can be no set parameters that the court can follow.

Contempt of Court

Husband stubbornly and obstinately refused to comply with the orders of the Court; No full disclosure of income

While addressing an issue of non-compliance of Court’s order with regard to paying maintenance to wife, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

The actions/ omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted, it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned.

Read more…

Kalkaji Temple

Del HC issues directions for removal of unauthorized shopkeepers, Sanitation facilities, Potable Drinking Water, Garbage Disposal, etc.

The shopkeepers or their families also cannot reside in the Mandir complex. The same is impermissible and is nothing but unauthorized encroachment and trespass into the Mandir’s premises.

Read more…

Right to demand Respect & Inter Cadre Transfers

Significance of ‘cogent reason’ while declining inter-cadre transfer

Addressing a grievance with regard to the denial of inter-cadre transfer Division Bench of Rajiv Shakdher and Talwant Singh, JJ., held that, denial with no cogent reasons impinges upon such person’s right to demand respect for her/his family life.

Read more…

Territorial Jurisdiction

Where can a petition under S. 125 CrPC be filed?

Subramonium Prasad, J., reiterated the law relating to the territorial jurisdiction of the court to entertain a petition under Section 125 CrPC.

Read more…

Will the place mentioned on invoice decide the jurisdiction of a Court on filing a suit against it? Del HC explains

Section 20 clearly provides that a Court within whose local limits the cause of action, “wholly or in part”, arises, would have territorial jurisdiction to try the suit.

Read more…

Cruelty

Wife made serious criminal allegations against husband and his parents but couldn’t prove: Would this amount to cruelty against husband to grant divorce?

While addressing a matrimonial matter wherein a wife caused cruelty to husband, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

For a man to see his parents to be taken into custody and being incarcerated even for a single day would have caused immense and untold pain and agony to him.

Read more…

Can allegations of demand of dowry and alcohol consumption made by wife amount to ‘cruelty’?

Expressing that, allegations made by the wife with regard to the husband demanding dowry and indulging in alcohol consumption, do not tantamount to making serious allegations impinging on the character of the husband, to such an extent, that they would be the cause of immense mental agony and cruelty, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., dismissed the petition.

Read more…

INX Media Case

Can accused be allowed to inspect documents kept in “malkhana”?

Mukta Gupta, J., expressed that,

“…while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on.”

Read more…

Arbitration

What happens if parties fail to agree on arbitrator within 30 days from receipt of request by one party?

Sanjeev Narula, J., allowed an arbitration petition by appointing a sole arbitrator to adjudicate the disputes between the contesting parties.

Read more…

What is the remedy against an order allowing application under S. 8 of Arbitration Act, where existence of arbitration clause is not disputed?

Amit Bansal, J., dismissed a petition challenging the order passed by the lower court whereby respondent’s application under Section 8 of Arbitration and Conciliation Act, 1996 was admitted.

Read more…

ICADR Rules regarding procedure come into play only after arbitration commences before appropriate jurisdiction of law: Del HC summarises law on seat, venue of arbitration

While observing that the role of ICADR Rules shall come into play with regard to the procedure to be followed, only after the arbitration commences before the appropriate jurisdiction of law, Suresh Kumar Kait, J., reiterated the observation of BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234, wherein it was stated that if the arbitration agreement provides that arbitration proceedings “shall be held” at a particular venue, then that indicates arbitration proceedings would be anchored at such venue, and therefore, the choice of venue is also a choice of the seat of arbitration.

Read more…

Can a party unilaterally appoint an Arbitrator of their choice? Read on

Suresh Kumar Kait, J., reiterated that no party could be permitted to unilaterally appoint an Arbitrator, as the same would defeat the purpose of unbiased adjudication of the dispute between the parties.

Read more…

Whether once a bench of SC has doubted correctness of an earlier bench of co-equal strength, and referred the issue to a larger bench, Courts lower in hierarchy should continue to follow earlier decision – Is it debatable?

The question of whether, once a bench of the Supreme Court has doubted the correctness of an earlier bench of co-equal strength, and referred the issue to a larger bench, Courts lower in hierarchy should continue to follow the earlier decision, appears to be debatable.

Read more…

Assault by Policemen

Law does not permit people to be beaten-up in police custody or during interrogation

While addressing a very unfortunate incident of police assault, Najmi Waziri, J., expressed that

Let no one have to repeat the tragic last words like George Perry Floyd, Jr.: “I can’t breathe”.

Read more…

Law on Offences against property

While committing the act of robbery, if revolver is brandished, would that be an offence under S. 397 IPC?

Subramonium Prasad, J., addressed a very pertinent question of whether brandishing a revolver during the act of robbery be covered under Section 397 of Penal Code, 1860.

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Dissolution of Marriage

Materialistic attitude of husband considering wife as cash cow: Is it a ground to dissolve the marriage?

The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., noted in a matrimonial matter that the wife was being viewed as a cash cow and the husband became interested in her only after she got a job with Delhi Police.

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Virtual Currency

Dealing in virtual currency and duping people of Rs 2.5 Crores: Can bail be granted for such alleged economic offences? Read full report to know

Getting indulged in Virtual Currencies even after receiving public notices not to deal in the same and further duping several people, the accused applied for bail. Anu Malhotra, J., denied application of the accused concerned by expressing that,

“…alleged commission of economic offences corrode the fabric of democracy and were committed with total disregard to the rights and interest of the nation and were committed by breach of trust and faith and were against the national economy and national interest, whereby a large number of innocent investors had been duped of their hard-earned money…”

Read more here…

POSH Act

Jurisdiction of Internal Complaints Committee and Local Committee: Detailed account of Delhi HC decision revolving around case of aggrieved women herself terminated from services

“…instead of providing assistance to the aggrieved woman in prosecuting her complaint of sexual harassment, the Akademi has been opposing her tooth and nail and has even terminated her services pending the inquiry before the Local Committee.”

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Bail

Father-in-Law accused of raping own Daughter-in-Law: Read whether Del HC grants bail or not

Rape is not merely a physical assault; it is often destructive of the whole personality of the survivor.

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Bail granted to a young mother accused in murder of her tutor with whom she had illicit relationship

Rajnish Bhatnagar, J. granted bail to a young mother of two minor children, who was booked in connection with the murder of her tutor with whom she had an illicit relationship.

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Wife commits suicide after speaking to husband on mobile phone, husband suspicioned to have instigated wife| Read whether Del HC grants bail to husband

Mukta Gupta, J., decided a bail matter wherein the husband suspicioned to have instigated the wife to commit suicide.

Read more here: https://bit.ly/3ysAXtz

Appellate Court

Reasons, an essential feature of a judgment? Is there a link covered under reasons in Judgment? Read on

Duty of the Appellate Court is to see whether the Metropolitan Magistrate had considered the claim of the petitioner on merits and what are the reasons given by the Metropolitan Magistrate to reject the claim.

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Testamentary Proceedings

Prior to proving a Will, its execution is to be proved first by an attesting witness? Del HC explains

Granting that the CPC could be made applicable to the contested testamentary proceedings, as in the present case, it still leaves the court with the discretion to allow the party to be examined subsequent to the examination of his own witnesses.

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Article 12 of the Constitution of India

World Bank a Government Agency or not? Del HC decides

World Bank or any of the other international bodies, which have proceeded to debar the petitioner, cannot be considered as a “Government Agency”. This is for the reason that none of the international bodies are bound by any directions issued by the Government of India.

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Maintenance

Husband is bound to compensate wife who, after spending on children, may hardly be left with anything to maintain herself

In households wherein the women are working and are earning sufficiently to maintain themselves, it does not automatically mean that the husband is absolved of his responsibility to provide sustenance for his children.

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Can wife claim maintenance under S. 125 CrPC where she as well as husband had spouses living at the time of alleged marriage?

A second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision.

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Maintenance can be claimed under DV Act even if already granted under S. 125 CrPC: Del HC reiterates

Amit Bansal, J., reversed the order of the trial court as it dismissed the application filed by the petitioner under Section 26 of the Protection of Women from Domestic Violence Act only on the basis that it had been filed towards execution of maintenance already granted.

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Arbitral Award

Del HC’s decision focusing on methodology adopted by Arbitral Tribunal for calculating arbitral award on finding error in Surveyor’s report

“Mere erroneous application of the law, or appreciation of evidence, does not call for interference of the award on the ground of patent illegality. The Court cannot set aside the award by reappreciating the evidence, which is taken into consideration, by an Arbitral Tribunal”

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Court’s interference in regard to arbitral awards: Limited or Not? Del HC explains with the view taken by SC decision

“….so long as the view taken by an arbitrator, is a possible view based on facts, it is irrelevant whether this Court would or would not have taken the same view on the merits of the matter, hence arbitral award was required to be upheld.”

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Physical Presence v. Video Conference

Physical Presence for registration of marriage under Delhi (Compulsory Registration of Marriage) Order, 2014, a necessity? Delhi HC decides

“In a little over half a decade, since the Registration Order was notified, the universe has undergone a sea change but the Registering Authority, while exercising its power and jurisdiction under the Registration Order is refusing to recognize the reality that with the technology as is available today, web portals and Video Conferencing have become almost the norm.”

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Judicial Member

Whether duration of practice at the Bar be counted along with qualifying period put in by claimant as Judicial Member for calculating pension? Del HC decides

Kameswar Rao, J., refuses to grant relief to the claimant who urged to include 10 years of practice as an advocate for the purpose of calculating pension in addition to qualifying service as Judicial Member of Railway Claims Tribunal.

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Dying Declaration

Del HC on ‘Dying Declaration’ of a woman set ablaze by the husband: Conviction of Murder upheld

While upholding the decision of Trial Court, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., reiterated that dying declaration of a person by itself, maybe sufficient to find the accused guilty and if the statement is reliable and credible, it does not even need corroboration.

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Trademark Infringement

Will the rights of a prior user override those of a subsequent user even though it had been accorded registration of its trademark? All-Inclusive Report on Trademark Infringement of ‘Rajdhani’

The rights of a prior user will normally override those of the subsequent user even though it had been accorded registration of its trademark.

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Properties Mortgaged to Banks

If Banks have to survive, borrowers must exist and not mere borrowers but productive borrowers: Del HC on whether borrowers have protection against arbitrary disposal of properties mortgaged to banks at low prices? [In-depth Report]

The Banks seek collaterals and security to prevent losses to themselves. It is, but reasonable, to expect the Banks such as the respondent, to also respect the right of the borrowers to maximize their profits from the sale of collaterals/securities by the banks.

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Advocates Representation in Labour Courts

Representation by Advocates before Labour Courts: Del HC reiterates there is no absolute bar

Judicial decisions on the question of consent, including implied consent, have primarily turned on the facts of each case.

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Indian Army

Under Indian Army, can mere acceptance of a resignation create a vacancy for being filled up from cadet in waiting? Read what Del HC says

“Mere acceptance of resignation may not be sufficient to consider creation of a vacancy for being filled up from the cadet in the waiting.”

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Eviction Order

What are the essential ingredients that a landlord is required to show for purpose of getting an eviction order for bonafide needs? Del HC elaborates

Jayant Nath, J., while addressing a matter noted the essential ingredients that a landlord is required to show for the purpose of getting an eviction order for bonafide needs.

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Custodial Violence

Remedial action to be taken so that unscrupulous officers at Jail do not take advantage of knowledge of non-working of CCTVs & get away by doing any illegal act

Walls of prison, howsoever high they may be, the foundation of a prison is laid on the Rule of Law ensuring the rights to its inmates enshrined in the Constitution of India.

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Voluntary Retirement

Under Pension Rules, if a Government Servant seeks voluntary retirement, he must have completed service of 20 years and may serve notice of 3 months

Government Servant at any time, after he has completed 20 years of qualifying service, may give a notice of 3 months to retire from the service.

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Testimony of Child victim

Can testimony of child victim be trustworthy? HC reiterates law on finding child witness competent

Under Section 29 of the POCSO Act, there is also a presumption regarding the guilt of an accused. As a result, the prosecution has to lay down and prove the fundamental facts regarding the guilt of the accused but the burden of proof on the prosecution is not of ‘beyond reasonable doubt’. Once the facts are proved, the onus is on the accused to lead evidence to rebut the presumption raised under Section 29 of the POCSO Act.

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Settlement

Person accused under S. 307 IPC if entered into a compromise with victim, can Court quash criminal proceedings in light of settlement? Delhi HC unravels

“…an offence under Section 307 IPC will fall under the category of heinous offence, and therefore, has to be treated as a crime against the society and not against the individual alone and the proceedings under Section 307 IPC cannot be quashed only on the ground that the parties have resolved the entire disputes amongst themselves.”

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Compulsory Retirement

On what basis is an employee compulsory retired? An account of Compulsory Retired, IRS Officer | Read Del HC’s opinion stressing on ‘compulsory retirement, a subjective satisfaction’

Fundamental source of compulsorily retiring an employee of the Government is derived from “Doctrine of Pleasure” which springs from Article 310 of the Constitution of India.

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Negotiable Instruments Act

Does a decree automatically follows when a Metropolitan Magistrate take cognizance of an offence under S. 138 NI Act? Read on

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Income tax Act

Issuance of prior show cause notice and draft assessment order under S. 144B (7) of Income Tax Act: Is it a mandatory condition before issuing final assessment order? HC answers

High Court opined that Section 144B (7) of the Income Tax Act, 1961 mandatorily provides for issuance of a prior show cause notice and draft assessment order before issuing the final assessment order.

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Trade Marks Act

Whether S. 124 of Trade Marks Act provide for stay of action against passing off? Read on

There is no such occasion arising in a suit for passing off. It is only when clever drafting discloses the intent of the plaintiff to get over the statutory bar, being aware of the rectification proceedings commenced against the trade mark that it claims is exclusively it’s own.

Proceedings against Subway Systems (India) dropped in anti-profiteering case against franchisee

Bench opined that it is settled law that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, the applicant should ordinarily be one who has a personal or individual right in the subject matter of the application.

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Employer’s Negligence

Due to employer’s negligence, an employee suffered 100% disability | Read how Del HC emphasises on principle of res ipsa loquitur and strict liability to pronounce decision

Anup Jairam Bhambhani, J., emphasizing the principle of res ipsa loquitur and placing a detailed explanation on the same granted just and fair compensation to a person who was 100% disabled due to an accident at his place of work.

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Domestic Violence Act

Provisions of DV Act cannot be used as a ploy by son, to either claim a right in his father’s property or continue to retain possession of father’s property, on strength of his wife’s right of residence: Del HC

“…all cases of family disputes cannot be characterised as cases under the DV Act.”

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Abetment of Suicide

Issuing a legal notice and filing a complaint case against someone, would that amount to abetment of suicide? Del HC deciphers

Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing.

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Bank Guarantee

Bank Guarantee: Can these be encashed during their validity period? Read Del HC’s opinion on furnishing of bank guarantees

There is no judicial finding that a Bank Guarantee cannot be encashed during its validity.

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Chief Minister’s Advocates Welfare Scheme

CM Advocates Welfare Scheme: Only for the Advocates enrolled with Voter ID of Delhi? HC enumerates significance of Place of Practice v. Place of Residence

Prathiba M. Singh, J., remarked that,

Insurance for lawyers has been an aspiration for several years.

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Whether a Chief Minister’s promise to its citizens is enforceable? Succinct report in light of Delhi CM’s ‘Promise’ | Highlight on Doctrines of Promissory Estoppel & Legitimate Expectations

Prathiba M. Singh, J., while quoting that ‘Promises are meant to be broken’ stated that the law has evolved the doctrines of legitimate expectation and promissory estoppel to ensure that promises made by the Government, its officials and other authorities are not broken and are, in fact, judicially enforceable, subject to certain conditions.

5G Technology

Colossal Harm by rolling out of 5G Technology: Delhi HC dismisses suit for defective plaint, filed for gaining publicity; Imposes costs of Rs 20 lakhs

J.R. Midha, J., dismisses the suit filed regarding the rollout of 5G technology on observing that the suit was filed with the motive of gaining publicity and also the Court reasoned out various defects in the plaint.

Delhi Riots

Crucial aspects of ‘Terrorist Act’ and Right to Protest | Everything about Asif Iqbal Bail Order

“Terrorist Act” cannot casually apply to conventional offences; Foundations of nation stand on surer footing that to be shaken by tribe of college students

Devangana & Natasha v. State | Pivotal Findings in State against Devangana Kalita & Natasha Narwal

The Division Bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ., granted regular bail to activist Devangana Kalita and Natasha Narwal in the Delhi-Riots case.

COVID-19

“I can’t breathe”; HC calls oxygen shortage a ‘George Floyd moment for the citizens’; holds imposition of IGST on oxygen concentrators imported by individuals, unconstitutional

The Division Bench of Rajiv Shakdher and Talwant Singh, JJ., disposed of the petition which was filed in order to decide the constitutionality of imposition of IGST on the imported oxygen concentrators. The Court in its prologue said,

“This is a George Floyd moment for the citizens of this country. The refrain is ―I can’t breathe‖, albeit, in a somewhat different context and setting; although in circumstances, some would say, vastly more horrifying and ghastlier. Chased and riven by the merciless novel Coronavirus, the citizenry has been driven to desperation and despair.”

Compensation under Motor Vehicles Act

Whether it would be fair to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age? HC explains

J.R. Midha, J., while addressing a motor accidents claim application decided on the issue whether it would be fair to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age?

High Court Round Up Legal RoundUp

Media Trial, Sexual Assault, Judicial Over-Reach, Hate Speech, COVID-19 Updates and much more covered in over 90 topics | Bombay High Court’s Year-End Roundup 2021

This year the Bombay High Court dealt with several heart-wrenching matters to some very pertinent and significant decisions for the society at large. Let’s sail into these 124 Judgments carefully selected and briefed in the year 2021.

These reports are categorised into over 90+ topics.

Transgender’s Right to Contest Election

Can a transgender contest election from a seat reserved for women candidates? HC espouses transgender people’s “Right to Self-Perceived Gender Identity”

A Vacation Bench of Bombay High Court allowed the petitioner, a transgender person, to contest the panchayat elections from a seat reserved for women candidates.

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Sexual Assault

“Opening zip of pants”, Does it NOT “fit in the definition of sexual assault” under POCSO Act? Bom HC says so

Bombay High Court observed that acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ in Court’s opinion does not fit in the definition of ‘sexual assault’.

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[Reversed] Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act?

Bombay High Court had expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, they said would not amount to ‘sexual assault’.

UPDATE: This Judgment of the Bombay High Court has now been reversed by a 3-Judge Bench of the Supreme Court of India after the matter was mentioned by the Attorney General for India and appeals were filed by the State of Maharashtra and the National Commission for Women.

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Media Trial

Bombay HC on Media Reporting, Obligation of Investigators, Media Trial, Freedom of Press and the proverbial ‘Lakshman Rekha’ for Media Houses || Read this detailed report unravelling several significant aspects cropped in light of Sushant Singh Case

“Any report of the press/media, having the propensity of tilting the balance against fair and impartial “administration of justice”, could make a mockery of the justice delivery system rendering ‘truth’ a casualty. “

Read more…

Judicial Over-Reach

If Judges interfere in academic matters or step into other Organs of State, would that amount to Judicial Over-Reach? Court addresses

Bombay High Court expressed that “As Judge, we primarily don the hat of an adjudicator.”

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Unfair Labour Practice

Classic case of unfair labour practice: Workmen not given permanency on being engaged in a rotational pattern || Pool of Temporaries, Termination, Perennial Work & more

Clear recipe of an unfair labour practice, notorious in the industry, of employing ‘badlis’, casuals or temporaries and continuing them as such for years, with the object of depriving them of the status and privileges of permanent employees.

Cruelty

Husband making wild allegations that wife, her relatives, secured false certificates to get employment. Does husband’s conduct amount to ‘Mental Cruelty’ to wife? HC explains while upholding Family Court’s decision

“…making of unfounded allegations against the spouse or his/her relatives in the pleadings or making complaints with a view to affect the job of the spouse amounts to causing mental cruelty to the said spouse.”

Read more…

Abetment to Suicide

Child commits suicide, mentions drinking habit of father in suicide note. Can the father be held liable for abetment to suicide? Law explained

Lower Court’s Judge swayed away with the fact that the deceased boy committed suicide for an admitted position that the appellant was a drunkard.

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Well-Known Mark || IPR

ISKCON, Infringement of well-known mark: Read why Justice G.S. Patel deferred grant of discretionary relief in view of past history which may materially affect the action

“The very least a Court of equity expects when asked to grant discretionary relief is complete and honest disclosure of the relevant facts.”

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Homicidal Death

Can a person be held liable under S. 302 IPC on the basis of ‘last seen’ theory and not being able to offer sufficient explanation? Significance of ‘last seen’ theory in establishing homicidal nature of death discussed

Where the prosecution succeeds in discharging its primary burden and brings evidence on record which indicates that the facts, thereby proved, rest within the special knowledge of the accused, Section 106 of the Evidence Act comes into play.

Suspicion, however strong, cannot take the place of proof.

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Sushant Singh Rajput Case

Power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases: FIR against late actor Sushant Singh’s Sister not to be quashed

The Division Bench of Bombay High Court found prima facie case against Late actor Sushant Singh Rajput’s sister Priyanka Singh.

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Maintenance to Widowed Daughter-in-Law

Father-in-law denies maintenance to widowed daughter-in-law and her children. Will he be obligated to maintain them if late son had a share in ancestral property? HC Decodes

Sections 19 and 22 of the Act create first obligation to maintain a widowed daughter-in- law on the father-in-law. The obligation only shifts on the father of the widow, if the father-in-law prove his inability to maintain her.

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Fraud by Wife?

Husband alleged that wife hid her actual date of birth & since he intended to marry a ‘Mangalik Yog’ girl, fraud was played upon him. Here’s how HC solved the matter

Read this significant matter revolving around ‘fraud’ by the Bombay High Court.

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Section 417 of Penal Code, 1860

Whether absence of ‘dishonest concealment of fact’ exempt a person from being punished under S. 417 IPC? Read on

“…here was no ‘promise to marry’ nor intentional deception by misrepresentation or deceitfulness practised before establishing physical relationship with prosecutrix.”

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If two people have consensual sexual relationship but boy later refuses to marry, Will that attract offence of cheating under S. 417 IPC? Bom HC explains

Evidence on record revealed that the sexual relationship between the prosecutrix and the accused was consensual.

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Legal Heirs | Property

Relinquishment of self-acquired properties of a deceased by legal heirs. Will such release enure to benefit of all other legal heirs? Court explains

Relinquishment of properties inherited by the legal heirs of the person whose properties were self-acquired properties would not enure for the benefit of all the legal heirs of the said deceased but would enure only for those persons in whose favour such deed of relinquishment/release was executed.

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Defamation

Can a person’s image be used for a commercial purpose, without his/her express written consent? Justice G.S. Patel elaborates directing Amazon Prime to take down the telecast of a movie using a person’s private image

Simply using another’s image, and most especially a private image, without consent is prima facie impermissible, unlawful and entirely illegal. In a given case, it may also be defamatory, depending on the type of use.

Read more…

Suicide

Woman commits suicide along with her infant daughter within 7 years of marriage. Can husband of deceased be held guilty for offences under Ss. 498-A, 304-B read with 34 IPC? Mere suspicion of Cruelty & Harassment is enough?

The Division Bench of Bombay High Court, upheld the decision of Additional Sessions Judge wherein a woman committed suicide along with her infant daughter within 7 years of marriage and allegations were placed that she committed suicide on the pretext of cruelty and harassment, but same could not be proved.

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Woman commits suicide due to alleged illicit relationship of husband; mother registers case but seeks to withdraw stating she had lodged report under ‘rage’ | Bom HC Demystifies

The Division Bench of M.S. Sonal and Pushpa V. Ganediwala, JJ., quashed the charges of abetment of suicide and other offences under IPC against the applicants, on finding that no purpose would be served in continuing criminal proceedings against them.

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Agreement

Can a development agreement signed between Chairman of Society and one of the Managing Committee members be binding upon non-signatory? Court discusses while ordering redevelopment of building

This is the usual story of a solitary member of a society obstructing the redevelopment of the society building.

It does not matter to this member that the building is in a dilapidated condition unfit for human habitation.

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Copyright Registration

Does Copyright Act requires mandatory registration to seek protection under the Act? Justice G.S. Patel explains

“Copyright Act gives a range of rights and privileges to the first owner of copyright without requiring prior registration.”

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Daughter approaches Family Court on behalf of father’s Marriage

Can a daughter approach Family Court on behalf of her father to challenge validity of his marriage? OR only parties to marriage can challenge validity? Read in light of S. 7 of Family Courts Act

Bombay High Court addressed a concern wherein a daughter filed a petition seeking a declaration of her father’s marriage to be null and void on knowing that the lady concealed the fact of her being married and not divorced from her earlier marriage.

Read more…

Co-operative Societies

Board of Directors of Co-operative Bank: Power of Registrar of Co-operative Societies under Maharashtra Co-operative Societies Act & RBI’s role || Detailed Report

“The Registrar, Co-operative Societies has not acted as a rubber stamp of the RBI.”

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COVID-19

Remdesivir and Tocilizumab injections to be regulated; Collector Nagpur to examine regarding feasibility of making beds available at Mankapur Stadium, Nagpur and Nagpur Nagrik Sahakari Rugnalaya

Bombay High Court issued directions till the regulation of Remdesivir and Tocilizumab injections.

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Reports of RT-PCR Tests to be made available on Whatsapp; COVID positive patients reports to be uploaded within 24 hours on ICMR portal

The Division Bench of Bombay High Court, directed that reports for RT PCR test shall be made available to patients on WhatsApp.

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Rise of COVID-19 Cases in State of Maharashtra: State to file information on measures to de-congest jails, to control spread of virus & status of COVID cases

“…reports show a sudden rise of the COVID-19 cases in the State prisons, indicating a need for the Court’s intervention to revisit the measures.”

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MoH communication reducing oxygen supply to Maharashtra is “bolt from the blue”: Court directs PRAX AIR to keep supplying 110 MT oxygen per day

“…something for the present is required to be done, if we have to perform our duty of preservation of precious human life arising from Article 21 of the Constitution of India.”

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Deficient Remdesivir Drug and Oxygen to COVID-19 Patients: HC directs to hold meeting with manufacturers and procure

Bombay High Court addressed the suo motu public interest litigation raising concern with regard to a deficient supply of Remdesivir Drug and Oxygen Supply.

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“Elderly citizens being asked to choose between devil and the deep sea”: HC not impressed with Centre’s reply on petition for door-to-door vaccination for elderly and disabled citizens

If indeed, vaccination of elderly citizens by adopting a door-to-door vaccination policy is being avoided because such elderly citizens are aged and suffer from comorbidities, we regretfully record that the elderly citizens are literally being asked to choose between the devil and the deep sea.

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Modern ventilators, Doctors are not properly trained to operate”; HC raps centre for blame game on PM Cares Ventilators

The Division Bench of Bombay High Court, addressed the issue relating to supply of dysfunctional ventilators through PM Cares Fund. The Bench slammed the Center for contending that the ventilators were in working condition and the deficiencies were with the hospital staffs, the Bench remarked,

“We would have appreciated had the affiant avoided entering into a blame game and instead shown sensitivity towards the patients, it being the paramount object of the welfare State to take care of the health of its citizens.”

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75% ventilators supplied through PM Cares Fund found dysfunctional; HC seeks response from Center

Bombay High Court addressed the issue of dysfunctional ventilators supplied through PM Cares Fund. The Bench remarked,

“We find the above situation as regards the dysfunctional ventilators supplied through the PM Cares Fund, to be quite serious. We, therefore, call upon the learned ASGI to state, as to what action would the Union of India initiate in these circumstances.”

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“Take immediate actions against e-commerce websites for supplying non-essential items”, HC directs Maharashtra government

The Division Bench of Bombay High Court asked State Government to actions against the dealers and e-commerce websites for supplying various nonessential items in violation of government order.

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Corporate Social Responsibility, Mucormycosis and shortage of drugs, HC urges Central Drug Controller to increase production capacity and reduce prices of drugs

The Division Bench addressed the issue of Mucormycosis or Black Fungus disease and reluctance of public and private sector companies to abide by their corporate social responsibility. The Bench stated,

“When these corporate entities are enjoined with a statutory duty (See section 135 of the Companies Act, 2013), it is expected that these companies discharge their duties whenever they are called upon to do so and in our opinion, there could have been no better opportunity than the present time and present cause to discharge such duty.”

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“Are you prepared to introduce door to door vaccination for senior citizens?” HC sanctions door to door vaccination after noticing center’s disinclination to formulate a universal scheme

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[Remdesivir shortage] “How such drug in such short supply, is available to Politicians and Actors for distribution to public at large?” HC pulls up state over inadequate crisis management

“The allotment of Remdesivir appears to have been made on the basis of ‘functional bed capacity’ of each of the hospitals. Such allocation whether would cater to the actual need of the patients has not been explained to us.”

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Do not insist on production of Aadhar Cards by correctional home inmates for Vaccination, HC directs State

The Division Bench of Bombay High Court. had addressed a suo motu case on the issue of alarming rise in COVID-19 cases in prisons of the State of Maharashtra.

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“Article 21 casts corresponding duty on State to ensure no life is extinguished due to unavailability of oxygen”; HC tells State

“We have long passed the stage of determining whether patients are suffering from the lack of oxygen or not. The material placed before us establishes that patients are indeed suffering and even in some cases succumbing for want of the supply of oxygen, in the State of Goa.”

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Allow entry in Goa for medical emergency even without Covid negative certificate; HC modifies its earlier order. Deprecates DMs for amending Court orders on their own

“…the magistrates are bound by Court’s order and they cannot modify the same on their own.”

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Biovet Pvt. Ltd. allowed to use idle vaccine manufacturing unit for Covaxin production; directs Maharashtra to cooperate

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“Not a case of sealing the borders”; HC tells State to ensure person entering in Goa carry a Covid-19 “negative” certificate

“This is not a case of sealing the borders. This is only a case where steps are taken to ensure that the persons who are entering into Goa are not already tested as COVID positive so that they do not contribute to the spread of the epidemic and at the same time are cared for better in their own State.”

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CSR, Mucormycosis and Deficit Drug Supply; HC reminds Center, “the situation is war like”

“This is a sort of war like situation for Maharashtra and in particular city of Nagpur, which calls for rapid response and mighty one. We hope that these entreaties would be positively answered by the Central Government and if not, further loss of lives of a few more patients, unfortunate as it may be, may be a fait accompli.”

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[PM Cares Ventilators] “Will not permit experimentation of faulty ventilators”; HC warns Union Government

“We would not permit experimentation of the ventilators which have undergone major repairs, in treating the patients, since this would be causing a risk/health hazard to the patients and unfortunately, the use of such ventilators may cause loss of life.”

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No prohibition by Center on door-to-door vaccination; HC gives Maharashtra one week time to sanction door to door vaccination

It clearly appears to us that there is no categorical prohibition imposed by the Central Government for the States to undertake a door to door vaccination programme, for the elderly and disabled citizens…”

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COVID-19 and Article 25

Religious places of worship closed; Prayer offering in mosque during Ramzaan not allowed in wake of COVID-19: Court discusses scope of Art. 25

Bench while expressing that Article 25 of the Constitution of India permits all persons equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion, the same is subject to public order, morality and health, held that:

such congregation which is apprehended by the State, if such permission is granted, it is likely that it would seriously affect the public order and health. If such permission is granted, it would violate the condition imposed under Article 25 of the Constitution of India.

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COVID Vaccine and Intellectual Property Rights

“Serum Institute coined the term ‘Covishield’, took substantial steps towards development and manufacture”: Court finds no merit in Cutis Biotech’s passing off action

“…foundation of passing off action is the existence of goodwill. Further as to who conceived and adopted the mark earlier is also relevant.”

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CBI Investigation

Anil Deshmukh ‘prima facie’ committed cognizable offence, but No immediate FIR by CBI. Credibility of State machinery at stake: HC directs CBI to conclude preliminary investigation preferably within 15 days

“It is said that none can see time, but many a time, time makes us see many things hitherto before unseen. So true.”

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Circumstantial Evidence

Circumstantial Evidence. Wife found dead, can husband be convicted on the basis of him being last seen with wife? Do Police Officers need to substantiate their stand on basis of documents? Read on

Law does not require a particular number of circumstance so as to establish the chain. It altogether depends upon the nature of the transaction.

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Criminal liability

Can administrator of WhatsApp group be held criminally liable for objectionable posts of a group member? HC answers

Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator.

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Minor’s Consent

‘Consent’ of minor for sexual act who conceived and delivered a baby will be immaterial

“…the victim was minor at the time of alleged incident and during that period she conceived and delivered a baby. Her consent for the sexual act was immaterial.”

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Minor’s property

Minor’s property fraudulently transferred. Can application for such declaration and order for recovery lie in Guardianship Petition? HC elucidates

…what lies before a court, other than a family court under Section 7 of the Family Courts Act, is an application for appointment of guardian of the property of a minor or an application for permission to deal with such property. It is only these applications which are made by means of a guardianship or a miscellaneous petition before this court.

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Rape and conviction

Father rapes minor daughter, but conviction under S. 376(2) (i) IPC set aside. Why? Read Court’s opinion in light of S. 164 CrPC || Detailed Report

“…relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.”

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Domestic Violence

Daughter caught in crossfire between parents; Accused under DV Act by mother. HC decides whether allegations inherently probable? [Exhaustive Report]

The intent of the DV Act is to ensure that a woman who faces abuse at the hands of her husband or a male partner has an avenue to raise her grievance against such person and also any relative of such person. Ordinarily, this would include the relatives on the side of the husband or male partner.

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Quota

Explainer | Bombay HC at Goa on Quota in Municipal Polls [Detailed Report]

“Democratically elected nations burgeon on absolutely free and impartial elections and India being a colossal democracy demands such a process.”

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Hate Speech

“Extreme or harsh opinion is not a hate speech”; HC quashes FIR against Sunaina Holey terming it “hypersensitive and over cautious”

“The right to express one’s views is a protected and cherished right in our democracy. Merely because the point of view of the Petitioner is extreme or harsh will not make it a hate speech as it is only expressing a different point of view.”

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Search Warrant

What is proper procedure for executing a search warrant in a jurisdiction outside of issuing court? HC decides whether Ss. 101 and 105 CrPC are directory or mandatory

A Division Bench of Bombay High Court addressed a very pertinent issue of what is the proper procedure for execution of a search and seizure warrant when such warrant is sought to be executed outside of the local jurisdiction of the court issuing the warrant.

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Property Suit

In a property suit in which decree has been passed, can a third party’s intervention application claiming his right to recovery be maintainable? Read on

“..in a suit for specific performance, a third party’s assertion that he has a stake in the subject matter of the suit counts to noting (sic). What matters is the contract, not the property covered by the contract. “

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Commercial Bid

Can possible case of cartelization be determined only after opening of commercial bid? HC answers

There is nothing sacrosanct about finding the technical bid of a bidder responsive in a two bid system so as to make it obligatory on the employer to open the commercial bid. The employer may well come upon knowledge of some relevant information, which disqualifies the particular bidder, and in that case may choose not to open his commercial bid. If his disqualification is supported by some material on record, there is nothing further for this Court to inquire.

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Matrimonial Dispute

Whether HC should quash an FIR arising out of matrimonial dispute on ground of same being settled amicably? Gian Singh v. State of Punjab referred

High Court reiterated the observation of Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, while quashing an FIR registered for offences under Sections 498(A), 406, 504, 323, 34 of the Penal Code and Sections 3, 4 of the Dowry Prohibition Act, on the ground of matter being resolved amicably.

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Is it necessary for the wife to file an application for permanent alimony in ‘writing’ under S. 25 of Hindu Marriage Act? Court unfolds dilemma of ‘oral’ & ‘written’ application

In the case of a decree by mutual consent, if relief for permanent alimony is sought, there is no occasion for the Court to observe the conduct of the parties, to examine their financial stability and other circumstances of the case to pass any order of permanent alimony at the time of passing of the decree of divorce by mutual consent. Essential element is that the Court should be able to comprehend the financial position and conduct of parties to pass permanent alimony order.

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Wife, a chattel? On refusing to make tea, husband assaults wife with a hammer. HC observes ‘imbalance of gender – skewed patriarchy’

“There is imbalance of gender roles, where wife as a homemaker is expected to do all the household chores.”

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Bail

Read why Bombay HC granted anticipatory bail to ‘Constable’ accused of rape and other offences | Succinct Report

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Mumbai Cruise Drugs Case | Bom HC grants bail to Aryan Khan, 2 others: Read the fourteen bail conditions

Nitin W. Sambre, J., grants bail to accused Aryan Shah Rukh Khan, Arbaaz A. Merchant and Munmum Dhamecha while laying down 14 conditions.

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Bom HC discusses law where accused already granted bail but further non-bailable offences are added by prosecution

Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand, (2019) 17 SCC 326 wherein it was held:

“where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

In case of an application for amendment of pleadings, what would be the principal condition that Courts need to consider? Read on

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Adoption

Whether adoption can be restricted only to children in conflict with law, or in need of care and protection, or who are orphaned, abandoned or surrendered under provisions of JJ Act and Adoption Regulations? Elaborate report

The practice of adoption has been prevalent since ancient times and in different societies, the established practices and norms have evolved over a period of time.

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Right to Property

Right to Property under Art. 300 A – A Human and Constitutional Right? Court decides in a dispute of construction of National Highway [Land Owners v. State]

It is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

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Cooling Period under Hindu marriage Act

Is the 6 months period stipulated under S. 13-B(2) of Hindu Marriage Act mandatory or relaxation in exceptional situations is permitted? Read on

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Bribe | Prevention of Corruption Act

Mere recovery of tainted money without sufficient evidence to prove payment of bribe or to show voluntary receipt of money. Can accused be convicted under the Prevention of Corruption Act? Read on

Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe.

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Homebuyers & Builders

Builders taking flat purchasers for a ride, taking money but not delivering flats: Court asks builders to prove they are paupers, show standard of living bears out the same

Bombay High Court directed the builders who failed to refund the buyers their amount to date to establish that they are virtually paupers not having funds in their bank accounts and their standard of living also bears out the same.

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Cheating

For the offence of cheating under Penal Code, 1860, is intention of cheating important from inception? Read on

“…in the case of cheating, the intention of cheating right from the inception is important.”

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Departmental Enquiry

Departmental enquiry and criminal proceedings can go on simultaneously: Court refuses to quash departmental enquiry.

The Division Bench of R.D. Dhanuka and R.I. Chagla, JJ., refused to quash departmental enquiry against the petitioner even when there were pending criminal proceedings against him.

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Opportunity of Hearing

Denial of urgent hearing by DRT: Court says opportunity of hearing is integral part of constitutional philosophy well embedded in Arts. 14 and 21

“…opportunity of hearing is an integral part of our constitutional philosophy and it is well embedded in Articles 14 and 21 of the Constitution of India.”

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Right to Education Act

Can minority educational institution refuse admission to autistic child contravening statutory direction given before grant of minority status? Court answers

The disobedience of the directives issued by the Education Department cannot be condoned by obtaining certificate as minority education institution subsequently.

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Principle of Double Jeopardy

Do principles laid under S. 300 CrPC and principle of double jeopardy under Art. 20(2) of Constitution differ? Explained

Bombay High Court while setting aside an impugned order explained the slight difference between principles laid down under Section 300 of the Criminal Procedure Code, 1973 from the principle of double jeopardy under Article 20 (2) of the Constitution of India.

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Registration Act

Does a Registering Officer has right to decide whether person presenting document for registration has marketable title or not? Court answers

It is well settled that when a property is sold by public auction, in pursuance of an order of the Court and the sale is confirmed by the Court in favour of the purchaser, the said becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute.

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Domestic Violence Act

Concept of ‘continuing offences’ & limitation under Domestic Violence Act: Explained

“…concept of continuing cause of action and continuing offence needs to be appreciated from the point of view of the aggrieved person i.e. wife.”

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Income Tax Act

When is the intimation for setting off of refunds against tax remaining payable under S. 245, Income Tax Act, be given? Bom HC answers

“…intimation is to be given prior to the officer sets off the amount payable against the amount to be refunded. It can be neither simultaneous nor subsequent.”

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If a person willfully attempts to evade tax, he can be prosecuted under S. 276C(1) of the Income Tax Act

The Division Bench of K.R. Shriram and Amit B. Borkar, JJ., discussed when a person can be prosecuted under Section 276C(1) of the Income Tax Act.

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Fair Reporting

What is legitimate scope of a court reporter? When does a court reporter crosses line? Bom HC lays down

“…with modern communications technology, the nature of reporting — often from the well of the Court itself — has radically changed: we often now see updates going out every few minutes on digital media.”

“…a fleeting impression by a journalist of the value of evidence is entirely beyond his or her legitimate scope. Such a journalistic pronouncement becomes unacceptable when it is conveyed to the reading audience or public as something already decided, or about which no other view is possible.”

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POCSO Act

If a minor is made to succumb to penetrative sexual assault by various customers and is induced into prostitution, will person responsible for the same be punishable under POCSO Act? HC explains

Even according to the victim, she was lodged in the house of the appellants for a period of about a month and was subjected to sex twice a day.

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Outraging Modesty of Woman

Bom HC on ‘Outraging Modesty of Woman’ | Would throwing love chit on person of a married woman amount to outraging her modesty? Read on

The modesty of a woman is her most precious jewel and there cannot be a straitjacket formula to ascertain whether modesty is outraged.

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Dishonour of Cheque

Can mere dishonour of cheque amount to abetment of suicide? Bom HC decides

Mere dishonour of cheque and refusal to pay remaining balance amount involved in the transaction does not amount to abetment to commit suicide.

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Domestic Violence Act

Husband marrying second time after grant of divorce. Is it ‘domestic violence’ within DV Act? Decrypted

Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. This is in the context of a domestic relation shared between the aggrieved person and respondent.

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Maintenance and Welfare of Parents and Senior Citizens Act | Misery of Parents

“Daughters are daughters forever and sons are sons till they are married”: Bom HC orders son to vacate flat of 90 yrs old parents

Noting the misery of parents aged 90 years, G.S. Kulkarni, J., observed that,

“Daughters are daughters forever and sons are sons till they are married” albeit there would surely be exemplary exceptions.

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Under the Parents and Senior Citizens Act, is it necessary to find out whether property belongs to parent exclusively or is a shared household in which daughter-in-law has rights? Bom HC deciphers

The Division Bench of Ujjal Bhuyan and Madhav J. Jamdar, JJ., while explaining the provisions under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 also elaborated upon the concept of shared household and remanded the matter back to the Tribunal for Maintenance and Welfare of Parents and Senior Citizens.

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Senior Citizen soon to enter her 90’s desired to end her life: Son and Grandson mentally left no stone unturned to make life of ‘grandmother’ a living hell | Bom HC emphasizes on family and societal values being perished

It is so disheartening that at such old age when the only expectation of a senior citizen, from the near and dear ones is of care, concern, affection and love, instead, what has been returned is harassment, wretchedness, suffering and abuse.

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Harassment to grab senior citizen’s property | 94-year old father approaches Court stating he doesn’t want his daughter even for one-minute longer

Noting in case after case, complaints from senior citizens that their own sons and daughters are harassing them, Division Bench of G.S. Patel and Madhav J Jamdar, JJ., expressed that,

“…the harassment is an attempt to somehow grab the senior citizen’s property in his or her lifetime without thought spared to the mental or physical health well-being or happiness of these seniors.”

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Principle of Equal Pay for Equal Work

Principle of “Equal Pay for Equal Work” does not operate in vacuum, it is not a fundamental right but a Constitutional goal depending on several factors

The principle “Equal Pay For Equal Work” is not a fundamental right but a constitutional goal and entitlement to parity in Pay Scale would depend on several factors such as educational qualifications, nature of the job, duties to be performed, responsibilities to be discharged and experience.

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Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

‘People would be starved of liberty of thought if…’: Know why Bom HC partly stayed IT Rules, 2021

People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.

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Contempt Case

‘Judiciary’s dignity cannot be tarnished by irresponsible content’: Bom HC closes contempt case against person uploading contumacious content against Goa District Judiciary on YouTube & WhatsApp

“Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to punish for its contempt.”

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Defamation

Gangubai Kathiawadi | Can an adoptive son file for defamation of deceased mother? Bom HC decodes

“The law on the principle of Torts that an action dies with the person, in a defamation proceedings is required to be appreciated.”

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Divorce

No decision on divorce petition, yet wife creates matrimonial profile expressing will for second marriage. Can this be a ground for divorce?

“…conduct of the respondent to perform the second marriage and not to lead the life with the appellant is writ large from the fact that she did not apply for restitution of conjugal rights.”

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Right of Inheritance

Widow’s right of inheritance after re-marriage: Will mother of deceased be fully entitled to claim dues of deceased son or does wife who re-marries will also have share? Bom HC delves to answer

Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband,S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

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Supply of Water

Two hours, Twice a month, water supply – Even after 75 years of independence, Bom HC addresses request for regular water supply || State Govt. depriving people of their fundamental right

State Government by providing water to its citizens only twice a month, and that too for a mere two hours, is not only depriving its people of their fundamental right, but in doing so is inviting criticism and tarnishing its image, especially when such is the scenario after 75 years of independence.

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Rehabilitation

Negligent approach of Govt & a cascading effect: Mere right of rehabilitation will be equivalent to right of ownership? Detailed report on how slum dwellers encroached public land and claimed their right

“It is not new that valuable Government land on account of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government’s holding, causing a serious cascading effect.”

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Sexual Harassment

Fear of stigma, not being believed and being blamed: 17-year-old girl leaving a note to her mother explaining ill deeds of her uncle who sexually harassed her, ended her life | Bom HC delves to know what happened

Unfortunately, we have not been able to create an atmosphere in the Society where parents, teachers and adults in company of the child can identify signs of abuse and make sure children received care and protection.

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Rape on False Promise of Marriage

‘Astrological Incompatibility’ as reason to refuse marriage: Bom HC refuses to discharge man accused of rape on false promise of marriage

While noting a case of false promise to marry, Sandeep K. Shinde, J., refused to allow application wherein a man claimed the reason of astrological incompatibility valid for refusing marriage.

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Contractual Employees

To exercise rights, can contractual employees approach a permanent employer? Bom HC verdict determines

Contractual employees are engaged through contractors, their service conditions are governed by the contracts between them, hence in case of any grievance, they shall approach the contractor and not a principal employer.

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Conviction under Section 304 Part I Penal Code, 1860

“Necessary to read mind of offender and not consider offence devoid of emotions”: Bom HC acquits accused of offence under S. 302 IPC rather convicts under S. 304 Part I IPC

Convicting a person under Section 304 Part I of Penal Code, 1860 Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., held that,

On finding that there was no hope that his beloved wife would return to matrimonial abode, accused got enraged an lost self-control and assaulted his wife with whatever available just nearby.

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Cheating

Tendency of guaranteeing decision to come in favour of one party or other, amounts to maligning a particular Judge and at large, institution itself by giving an impression that justice can be bought

It is not uncommon feature that when the matter is pending before the particular Court, the parties indulge into transaction under the guise of ‘settlement’ and sometimes it so happens, even without the knowledge of counsel on record, who may prefer to argue the case on its merit. This tendency of guaranteeing the decision to come in favour of one party or the other, amounts to maligning a particular Judge and at large, the institution itself by giving an impression that justice can be bought and the Prosecutors and Judges can be sold.

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POSH Judgments

POSH Judgments and Order to be delivered only in Chambers or in-camera, media disclosure forbidden: G.S. Patel, J. issues detailed guidelines

While addressing an issue revolving around the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 and Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Rules, 2013, G.S. Patel, J., laid down guidelines with an endeavour to anonymize the identities of the parties.

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Trademark

“Mark is to be taken as a whole”: Bom HC reminds PhonePe while conditionally allowing withdrawal application

G.S. Patel, J., granted ‘conditional’ liberty to Phonepe (P) Ltd. to withdraw its suit and an interim application filed against the use of mark POSTPE by Resilient Innovations (P) Ltd. However, before granting leave to withdraw, the Court passed a reasoned order and decided not to delete those reasons “only because an application for withdrawal is being made at this very late stage”.

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Bribe

Law on Discharge of Accused: Read why Bom HC refused to discharge Income Tax Officer accused of demanding bribe

Sandeep K. Shinde, J., refused to discharge an Income Tax Officer from charges under the Prevention of Corruption Act. The applicant Income Tax Officer was accused of demanding a bribe.

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Educational Institute

Our educational institutions are so weak that they would fear that students would get adversely affected if a restaurant having liquor license was in school’s vicinity: Is it true? Bom HC finds out

An educational institute certainly contributes in creating ideal citizens. Human virtues and morals can never remain the same. It is thus more important that an endeavour of an educational institution should be to impart such education, so that the basic human values and good virtues are inculcated in the students, to make them ideal citizens.

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Rape

Lower Court Judge failed in its duty to protect dignity of rape victim: Bom HC’s decision on committing of rape by cab driver joined by his accomplice

“…object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.”

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Rape by person claiming to have supernatural powers: Bom HC upholds conviction under S. 376 IPC, observes blind faith is real driver in such cases

C.V. Bhadang, J., while addressing the matter with regard to rape committed by a person claiming to have supernatural powers, expressed that,

“It is significant to note that the blind faith of the parties/victim on the accused is the real driver in such cases.”

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Custody

Custody of minor child, can it be determined on basis of work commitment of one parent and availability of ample time with another? Bom HC decides while determining question of custody, visitation rights and more

Love and affection of both parents is considered to be the basic human right of a child.

Courts often ensure that even if custody is given to one parent, the non-custodial parent has adequate visitation rights.

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NDPS

Whether the blotter paper forms an integral part of the LSD drug when put on a blotter paper for consumption?

Addressing a very crucial question having relevance with the Narcotics Drugs and Psychotropic Substances cases, Revati Mohite Dere, J., decided whether blotter paper forms an integral part of the LSD Drug when put on blotter paper for consumption.

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Did Aryan Khan with other two accused hatch a conspiracy to commit offence under NDPS Act?

Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants.

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Documents

Does accused has right to demand production of documents withheld by investigator at framing of charge? Does S. 91 CrPC include witness statement?

Sandeep K. Shinde, J., expressed that it is settled law that at the stage of framing the charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, trial court is required to consider only police report referred to under Section 173 of the Code and documents sent with.

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Rape & Murder

‘Hang by neck till dead’: Bom HC confirms death sentence in a rarest of rare cases for committing rape and murder of a 3-years 9-months old child

While confirming the death sentence in this rarest of rare cases, the High Court observed:

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

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Rape, Murder of Ragpicker: Merely because crime is heinous and brutal, it won’t be just to get carried away sans any legal proof to substantiate charges

The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., while addressing an alleged rape and murder case of two rag pickers, held that,

“…prosecution has utterly failed in connecting the dots and bringing home the guilt of the accused.”

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Abetment of Suicide

Is it possible to frame a charge against accused for abetment of suicide and in the alternative for committing murder?

Sandeep K. Shinde, J., explained as to when a charge in the alternative can be framed against an accused and when it is not permissible to do so.

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Eviction

Eviction of tenant, serving of notice by modes laid under S. 106 of Transfer of Property Act: Bom HC discusses all [Detailed report]

A.S. Gadkari, J., while addressing a matter of the eviction of a tenant focused on the modes of serving a notice under Section 106 of the Transfer of Property Act, 1882.

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Sterling Witness

Significance of ‘sterling witness’ in a matter wherein a daughter alleges that her father raped her: Bom HC examines whether daughter’s evidence was of ‘sterling quality’ or not

Anuja Prabhudessai, J., while addressing a matter of a daughter alleging rape by her father expressed the significance of ‘sterling witness’.

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Outraging Modesty of Woman

Touching feet of a woman without her consent: Is it outraging the modesty of a woman?

“…touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger amounts to a violation of modesty of a woman.”

Honour Killing

‘Could have cut off relations, instead opted to commit cold-blooded murder’: Bom HC upholds death penalty of brother for pre-planned murder of sister and lover

In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction.

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Maintenance

Trial Court mentions wrong provision of Mahomedan Law while granting maintenance to wife: Judgment of trial court will be defective in eye of law? Bom HC answers

Shrikant D. Kulkarni, J., decides whether the trial court’s decision mentioning the wrong provision pertaining to maintenance to the wife will be defective in the eye of law or not.

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Stamp duty

Stamp Duty correctly payable on instruments typical in Redevelopment Projects: Bom HC to decide

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., considered petitions which raised questions about the interpretation of the validity of two circulars issued by the Inspector General of Registration and Controller of Stamps, Maharashtra State dated 23-06-2015 and 30-03-2017.

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Daughters as Co-parceners

S. 6 of Hindu Succession Act prevails over S. 29-A inserted by Maharashtra Amendment; wasn’t necessary for Parliament to repeal S. 29-A

“Central enactment, i.e., Section 6 Hindu Succession (Amendment) Act, 2005 would be applicable to this case and in view thereof, the plaintiff has share in the suit property, which has been rightly adjudicated by both the Courts below.”

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Impotency

Wife seeks to insert averments with respect to impotency of husband, can amendment to petition for annulment of marriage be allowed? Bom HC explains

While addressing a matter, Mangesh S. Patil, J., laid down significant aspects with regard to when a petition can be amended.

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In-camera proceedings

Does S. 327(2) CrPC providing for “in camera” proceedings apply to appeals? Bom HC decides while rejecting Tarun Tejpal’s application

A Division Bench of Revati Mohite Dere and M.S. Jawalkar, JJ. rejected Tarun Tejpal’s plea to conduct “in camera” proceedings in connection with the appeal filed against his acquittal in a rape case. The High Court held that:

“Section 327(2) CrPC would only be applicable to ‘inquiry’ or ‘trial’ and that the same will not apply to appeals, either appeal against conviction or an application seeking leave to file appeal against acquittal.”

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Framing of Charges

Can Judge sift and weigh evidence at stage of framing of charges? For what purpose? Bom HC considers while refusing to discharge accused

The judge while considering the question of framing the charges under Section 227 of the Criminal Procedure Code, has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not, a prima facie case against the accused has been made out.

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Temporary Residence v. Casual Residence

Can Magistrate entertain application under S. 12 DV Act from woman coming to his jurisdiction for casual visit? Is that covered under “temporarily resides”?

Sandeep K. Shinde, J., held that an aggrieved person cannot choose to file a petition under Section 12 of the Domestic Violence Act at any and every place, even if she was a mere casual visitor to that place.

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Case Briefs High Courts

Magistrate required to exercise judicious discretion before ordering interim compensation, S. 143-A NI Act not mandatory: Kar HC

Karnataka High Court: Rajendra Badamikar, J., reversed an order of the Magistrate which had directed the petitioner accused to deposit 20% of the cheque amount before the court. The High Court said that Section 143-A of the Negotiable Instruments Act, 1881 is not a mandatory provision.

Factual Matrix

The respondent herein had filed a private complaint before the Trial Court against the present petition for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

As per the Respondent-Complainant, the petitioner accused had taken a hand loan of Rs 9 lakhs from the complainant in order to purchase a plot. But the sale deed was not executed and when complainant requested the accused-petitioner for repayment of the amount or else to execute the sale deed he issued a cheque and when the said cheque was presented through the banker of the complainant it was returned for insufficient funds.

Further, it was alleged that the complainant issued a legal notice calling upon the petitioner for payment within 15 days, but he failed to make any payment as such he filed a private complaint under Section 138 of NI Act.

Magistrate passed the impugned order directing the accused-petitioner to deposit 20% of the cheque amount before the Court.

Analysis, Law and Decision

High Court noted that the complaint was filed under Section 138 of NI Act in respect of bouncing of cheque issued by present accused of a sum of Rs 9 lakhs. After recording the sworn statement, the Magistrate took cognizance and issued the process against the accused/petitioner who appeared and enlarged on bail.

Present petitioner appeared before the Trial Court and was enlarged on bail and the matter was adjourned to 28-11-2019 for recording the plea. On that date, the counsel for the complainant/respondent herein filed an application under Section 143A of NI Act.

Magistrate’s order disclosed that as per the mandatory provisions of Section 143A he passed the impugned order for deposit of 20% of the cheque amount. It was noted that he did not hear the counsel for the accused and no opportunity of being heard was given to him.

Bench expressed that,

Section 143A (1) is not a mandatory provision and it says that Court may order the drawer of the cheque to pay the interim compensation as per conditions stipulated there under.

It was evident that the power under Section 143A was vested with the magistrate to be exercised judiciously after recording the plea and it was not mandatory, but the Magistrate was required to exercise his judicious discretion under Section 143A of the Act.

But in the instant case, the impugned order disclosed that the Magistrate had not even applied his mind and in a mechanical way as per the mandatory provisions of Section 143A he has directed the accused to deposit 20% of the cheque amount. The provisions of Section 143A are not mandatory but the discretion was given to the magistrate to be exercised judiciously.

In Court’s opinion, the entire approach of the Magistrate was against the settled principles of natural justice and he did not even pass a summary speaking order giving reasons for passing such an order.

The order itself disclose that he carried on impression that Section 143(A) of the Act is a

mandatory provision of law but ignored the fact that the word used in the Section is ‘may’ and not ‘shall’ which gives a discretion to the Court to be exercised in a judicious way.

Therefore, the entire approach of magistrate was against the settled principles and the impugned order called for interference. [Jahangir v. Farooq Ahmed Abdul Razak, Criminal Petition No. 201213 of 2020, decided on 6-7-2021]

Advocates before the Court:

For the Petitioner: Sanjay A. Patil, Advocate

For the Respondent: S.S. Mamadapur, Advocate

Case Briefs High Courts

Dishonour of Cheque | Is it mandatory for trial court to award interim compensation under S. 143-A NI Act on mere invocation thereof? Del HC decides whether S. 143-A is directory or mandatory?

Delhi High Court: Anu Malhotra, J., held that the provision of Section 143A of the NI Act, 1881 is directory in nature and not mandatory.

Petitioners were stated to be the directors as per the complaints i.e. CC NI Act 12-20 and CC NI Act 100-20 filed by the respondent before the trial court under Section 138 read with Section 142 of the NI Act, 1881 and were summoned as co-accused therein.

Both the above-said complaints were related to the dishonour of cheques.

Complainants filed an application under Section 143A of the Negotiable Instruments Act seeking grant of interim compensation pursuant to accused persons having pleaded not guilty to the notice under Section 251 CrPC. The trial court directed:

“16. In the event of acquittal of the accused persons in the present cases, the complainants shall be directed to repay the amount to the accused persons with interests at the prevailing bank rate, as provided in Section 143-A(4) of the NI Act

17. The present applications moved by the complainants seeking interim compensation stand disposed as allowed. The accused persons are jointly and severally directed to pay a consolidated amount of Rs. 26,06,400/- in the above- captioned matters. In the event of any default on the part of accused to pay the amount, the complainant is at liberty to initiate appropriate proceedings as provided u/S 143- A(5) of the Negotiable Instruments Act, 1881.”

Trial Court observed to the effect that there is no authoritative pronouncement of the Supreme Court nor of this Court on the interpretation of Section 143A of the NI Act, 1881 and there are divergent views of the High Court of Madras and Chattisgarh High Court in relation to the nature of the provision.

Vide the present petition, petitioners contended that the impugned order was neither tenable in law nor on facts, that the trial court did not even consider that the accused i.e. the petitioners could have put forth their documents i.e. the admitted documents which could have been considered and dealt with by the MM which would have negated even the admitted documents such as bank statements, email, whatsapp chats and that the Trial Court did not even think it fit to arithmetically calculate the amounts in terms of the alleged loan agreement to make out whether on the alleged date of the agreement i.e. 30.09.2020, the amounts filled in in the cheque were actually due or outstanding from the petitioners to the respondent 2 nor did the Trial Court even consider that the respondent 2 had concealed the factum of having received substantial money from the petitioners 1 & 2.

Petitioners submitted that the Trial Court could have directed respondent 2 to file their bank statements and income tax returns to show the outstanding amount due against the petitioners and that the Trial Court acted as a mute spectator assuming that on an application under Section 143A of the NI Act, 1881, the Magistrate was only required to direct payment of 20% interim compensation and nothing else.

Analysis, Law and Decision

High Court observed that to consider whether a legislation is mandatory or directory in nature as laid down by the Supreme Court in Mohan Singh v. International Airport Authority of India, (1997) 9 SCC 132, regard must be had to the context of the said matter and the object of the provision and use of the word “shall” or “may” is not decisive. If a statutory remedy is provided for violation of the said provision, then it can be construed as a mandatory provision as laid down by the Supreme Court in State of U.P. v. Babu Ram Upadhya, AIR 1961 SC 751.

Difference between the provisions of Section 143A and 148 of the NI Act, 1881 had already been spelt out in the Bombay High Court decision of Ajay Vinodchandra Shah v. State of Maharashtra, 2019 (4) MHLJ 705.

“…it apparent that the intent of the legislature in using the word “may” in Section 143A(1) thereof for directing the drawer of the cheque to pay the interim compensation to the complainant at the stages as provided therein in Sub-Clauses (a) and (b) thereof which has mandatorily in terms of Section 143A(2) thereof been directed not to exceed 20% of the amount of the cheque, can only be termed to be directory in nature and cannot be held to be mandatory as sought to be interpreted by the learned Trial Court vide the impugned order.”

With regards the observations of the trial court to the effect that the Court at the stage of awarding the interim compensation, is not required to consider the strength of the defence of the accused and the same is immaterial at this stage and though, the arguments led on behalf of the accused may seem attractive at the first blush, the same cannot be gone into by the Court at the stage of consideration of directing payment of interim compensation in terms of Section 143A of the NI Act, 1881 as that would amount to a mini-trial, it is essential to observe that the provisions of Section 294 of the CrPC, 1973 apply to all proceedings before any Court where the Code of Criminal Procedure, 1973 is applicable

Lastly, the High Court held that the provision of Section 143A of the NI Act, 1881 has essentially to be held to be ‘directory’ and cannot be termed to be ‘mandatory’ to the effect that the trial court had mandatorily to award the interim compensation under Section 143A of the NI Act in all proceedings tried under Section 138 NI Act on the mere invocation thereof by a complainant and thereby order in terms of Section 143A(2) thereof, the interim compensation to the tune of 20% of the amount of the cheque invoked.

Applicability of Section 294 CrPC

The applicability of Section 294 of the CrPC, 1973 has been made essential in all proceedings in criminal trials and undoubtedly, the proceedings under Section 138 of the NI Act, 1881 are termed to be quasi-criminal in nature.

“…it is essential to observe that the award of interim compensation in terms of Section 143A of the NI Act, 1881 has to be after providing sufficient reasons and whilst taking the same into account, the determination of interim compensation directed to be paid by the petitioners herein to the extent of the maximum of 20% of the cheque amount to the complainants…”

In view of the above discussion, the impugned order of the Metropolitan Magistrate was set aside with the matter being remanded back to the Trial Court to dispose of the application under Section 143A of the NI Act, 1881 filed by the complainants of the said complaint cases seeking interim compensation from the faccused after the invocation of Section 294 CrPC and considering the submissions made by the petitioner in response to the applications under Section 143A of the NI Act, 1881 and taking into account that vide this verdict it is categorically held to the effect that the provision of Section 143A of the NI Act, 1881 is directory in nature and not mandatory. [JSB Cargo and Freight Forwarder (P) Ltd. v. State, 2021 SCC OnLine Del 5425, decided on 20-12-2021]

Advocates before the Court:

CRL.M.C.2663/2021

For the Petitioners: Mr. Bharat Gupta and Mr. Gunjan Arora, Advocates.

For the Respondents: Ms. Aashaa Tiwari, APP for State Mr. Ashok Mahipal, Advocate for R-2.

CRL. M.C. 2730 of 2021

For the Petitioners: Mr. Bharat Gupta and Mr. Gunjan Arora, Advocates.

For the Respondents: Mr.Mukesh Kumar, APP for State. Mr.Ashok Mahipal,Advocate for R-2.

Case Briefs District Court

When does burden of proof shift to accused to rebut statutory presumption in cheque bounce cases under S. 138 NI Act? CMM Court considers

Court of XX Addl. Chief Metropolitan Magistrate, Bengaluru City: Bhola Pandit, XX Addl. CMM, convicted a person who presented a cheque to repay a loan but the same was dishonored due to insufficient funds.

Instant complaint was filed under Section 200 of Code of Criminal procedure against the accused of the dishonour of cheque punishable under Section 138 of the Negotiable Instruments Act.

Background

It was alleged that the complainant and accused were very well known to each other for more than 10 years. The accused had availed a hand loan of Rs 15,00,000 from the complainant for business and family maintenance by way of cash and agreed to repay the same within one year.

Even after completion of the said period, the accused did not return the money as agreed upon. Accused had requested to wait another one year time for repayment of the said loan saying difficulty of business due to effect of demonetization of currency notes by the central government. After the lapse of agreeing another one time also, accused did not come forward to pay the said loan amount.

After several demands and requests, towards discharge of his liability, the accused had issued a post-dated cheque. The said cheque was returned by the bank due to “funds insufficient”.

The notice sent to the first address was duly served and the second-mentioned address was evaded by the accused, hence returned with an endorsement “Un Claimed”.

The complaint was filed within time and had sought to convict the accused by granting compensation under Section 357 of Code of Criminal Procedure double of the cheque amount.

Points for Consideration

Whether the complainant proves that, accused has issued a postdated cheque for Rs 15,00,000 towards discharge of his liability, which was returned unpaid on presentation and also not complied with the notice issued by the complainant and thereby committed an offence punishable under Section 138 of NI Act?
What Order?

Analysis, Law and Decision

Court noted that inspite of service of demand notice, accused had issued an untenable reply to the said statutory notice.

To bring home the guilt of the accused, as per the verdicts of the Supreme Court in the case of Indian Bank Assn. v. Union of India, the sworn statement of the complainant had been recorded by way of examination-in-chief as PW 1.

Further, to disprove the case of the complainant and also to rebut the statutory presumptions under Section 139 of NI Act, the accused neither had entered the witness box nor had produced documentary evidence.

As per Section 118(a) and 139 of NI Act, it was very clear that, when the issuance of cheque drawn from the account of the drawer and also a signature on the cheque was admitted or undisputed, the statutory presumptions shall be drawn in favour of the complainant stating that, the accused had issued the disputed cheque towards the discharge of his legal debt and that the complainant was the due holder of the said cheque.

In the Supreme court decision of Rangappa v. Mohan, (2010) 11 SCC 441, it was held that,

“Once the cheque relates to the account of the accused and he accepts the same and also admits his signature on the cheque, then the initial presumption under Section 139 of NI Act as well as under section 118 of NI Act has to be raised in favour of the complainant. It is a mandatory presumption. But the accused is entitle to rebut the same on preponderance of probabilities.”

Whether the present complaint would meet the mandatory provisions of section 138 of NI Act or not?

On perusal of the material documents and presentation of the complaint, it appeared that the present complaint was filed by complying with the provisions of Section 138(a) to (c) of NI Act.

The Bench added that the accused had been admitting his issuance of cheque and the signature therein. Therefore, the statutory presumptions under Sections 118(a) and 139 of the NI Act were raised in favour of the complainant. Hence, now the burden was on the accused to rebut the statutory presumptions and also to establish his defense.

Accused ha utterly failed to bring on record any probable evidence to rebut the statutory presumptions under Sections 118(a) & 139 of NI Act.

Court opined that the accused had borrowed a hand loan of Rs 15,00,000 from him and towards the discharge of the said loan, the accused issued the cheque, and the said cheque was returned unpaid due to “Funds Insufficient” in the account of the accused.

Concluding the decision, it was held that the complainant had proved the guilt of the accused punishable under Section 138 of NI Act. [Ravi M.C. v. S.S Tools, CC No. 3906 of 2019, decided on 3-12-2021]

Advocates before the Court:

For the Complainant:

Sri. Ramesh C.H., Advocate

For the Accused:

Sro. N. Somashekar, Advocate

Case Briefs District Court

“Account closed” and Cheque returned: Is it a reason sufficient for convicting a person under S. 138 NI Act? Read detailed decision of CMM Court, Bangalore

Court of XX Addl. Chief Metropolitan Magistrate, Bengaluru City: In light of cheque being returned by the bank due to “Account Closed” Bhola Pandit, XX Addl. C.M.M, convicted an accused under Section 138 of the Negotiable Instruments Act, 1881

The present complaint was filed under Section 200 of the Code of Criminal Procedure read with Sections 138, 142 and 143 of the Negotiable Instruments Act against the accused of dishonour of cheque.

Background

Accused had availed hand loan of Rs 3,00,000 from the complainant for his family and legal necessities and agreed to repay the same within 3 months. Even after the completion of three months, the accused did not repay the amount and after several demands and requests, accused issued a cheque but the same was returned by the bank due to “Account Closed” as per banker’s memo.

Thereafter, the complainant got issued a demand notice to the accused and even after that, no repayment has been done by the accused.

Hence, the present complaint was filed within time and had sought to convict the accused by granting compensation under Section 357 of Code of Criminal Procedure double of the cheque amount.

Points for Consideration:

Does the complainant prove beyond reasonable doubts that, the accused has issued a cheque bearing No.930630 Dated 30.01.2019 for Rs 3,00,000/- towards the discharge of his lawful liability of the complainant and when the said cheque was presented for encashment, it was returned unpaid due to “Account Closed” in the account of the drawer as per banker’s memo and inspite of issuance of demand notice, the accused has failed to pay the cheque amount, thereby has committed the offence punishable under Section 138 of NI Act?
What Order or sentence?

Analysis, Law and Decision

The Court opined that the statutory presumptions under Sections 118(a) and 139 of the NI Act shall be drawn in favour of the complainant. Accused neither cross-examined PW 1 nor entered in the witness box to rebut the statutory presumptions drawn in favour of the complainant under Sections 118(a) and 139 of the NI Act.

There is no rebuttal evidence on behalf of the accused to disprove the case of the complainant.

Complainant established his case beyond reasonable doubt since he did not deny the financial capacity of the complainant either at the time of explaining to him the substance of the accusation or at the time of recording his statement under Section 313 of the Code of Criminal Procedure. Accused even admitted receiving the demand notice.

Provisions of Section 139 of NI Act contemplates that, ‘There shall be a presumption unless the contrary is proved with the holder of a cheque received for the discharge, in whole or in part of any debt or other liability’.

In the recent judgment, (2021) 5 SCC 283, Kalamani Tex v. P. Balasubramaniyan, the larger bench of the Supreme Court, held that;

“ U/s 118 & 139: Once issuance of cheque and signature admitted, it is required to presume that the cheque was issued as consideration for a legally enforceable debt.”

Hence, Court opined that the accused had borrowed hand loan of Rs 3,00,000 from him towards the discharge of the said loan, the accused had issued the cheque and the said cheque was returned unpaid due to “Account Closed” in the account of the accused. Therefore, point 1 was answered in affirmative.

In view of the above discussion, complainant proved the guilt of the accused punishable under Section 138 NI Act.

Bench stated that it is worth noting that the offence was in nature of civil wrong, therefore it would be proper to award sentence of fine, instead of awarding a sentence of imprisonment.

Direction

Court acting under Section 255 (2) of Criminal Procedure Code, convicted accused convicted for the offence punishable under Section 138 of Negotiable Instrument Act and sentenced to pay fine of Rs 3,55,000.

Acting under section 357(1) of code of criminal procedure, it is ordered that an amount of Rs.3,50,000/-(Rupees Three Lakhs Fifty Thousand only) there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.5,000/- (Rupees Five Thousand only) is defrayed to the state for the expenses incurred in the prosecution.

Subject to appeal period the bail bonds stood cancelled. [Purushothama H.C. v. Thotappaji T.S., CC No. 6117 of 2019, decided on 2-12-2021]

Advocates before the Court:

By Sri. B.J. Krishna – Advocate

By Sri. Munishamanna. U – Advocate

Case Briefs High Courts

J&K and Ladakh HC | Dishonour of cheque; HC advices Criminal Courts to impose fine equivalent to amount of cheque plus at least 6% interest per annum

Jammu & Kashmir and Ladakh High Court: Sanjeev Kumar, J., held that the sentence of fine under Section 138 of N.I.Act must be sufficient to adequately compensate the complainant. The Bench stated,

“The prime object of enacting Chapter XVII, of the N.I. Act is to control and discourage the menace of cheque bouncing in the course of commercial transactions and to encourage the culture of use of cheques and enhancing the credibility of the instrument.”

The Trial Court had convicted and punished the respondent under Section 138 of Negotiable Instruments Act, 1981, and held him liable to pay compensation of Rs.2.00 lakh to the petitioner. The instant appeal had been filed by the petitioner with the grievance that the respondent-accused should have also been awarded fine sufficient enough to meet the liability of the cheque issued by him which was dishonoured. The petitioner contended that the compensation awarded was only one fifth (1/5th) of the value of the cheque as the cheque issued by the respondent was for the amount of Rs. 10 lakh.

Observation and Analysis

Apparently, Section 138 of N. I. Act states that, the Criminal Court after convicting the accused, is empowered to impose punishment of imprisonment for a term, which may extend to two years, or fine which may extend to twice the amount of cheque, or both. The Bench observed that, the Trial Court is, thus, given the discretion to impose the sentence of imprisonment or fine or both.

The Supreme Court in Assistant Commissioner, Assessment-II v. Velliappa Textiles Ltd., 2003 11 SCC 405, had held that, “where the legislature has granted discretion to the court in the matter of sentencing, it is open to the court to use its discretion. Where, however, the legislature, for reasons of policy, has done away with this discretion, it is not open to the court to impose only a part of the sentence prescribed by the legislature, for that would amount re-writing the provisions of the statute.”

Similarly, in Damoder S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, the Supreme Court had observed, “The object of bringing Section 138 into the statute was to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. It was to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficient arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers.”

Reliance on the decision of the Supreme Court on the aforesaid case, the Bench observed that unlike other forms of crime, the punishment for commission of offence under Section 138 of N. I. Act is not a means of seeking retribution, but is more a means to ensure payment of money and, therefore, in respect of offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. The Bench opined that the Criminal Court while convicting an accused for commission of offence under Section 138 of N.I. Act, cannot ignore the compensatory aspect of remedy and the compensatory aspect can only be given due regard if the sentence imposed is at least commensurate to the amount of cheque, so that the fine, once imposed, can be appropriated towards payment of compensation to the complainant by having resort to Section 357 of CrPC.

Opinion and Findings

The Bench opined that it the Court should not resort to Section 357(3) of CrPC while imposing sentence under Section 138 of N.I. Act, rather the Criminal Court should bear in mind the laudable object of engrafting Chapter XVII containing Section 138 to 142 of NI Act and give priority to the compensatory aspect of remedy. The Bench stated,

“Indisputably, the Legislature has given discretion to the Magistrate to impose a sentence of fine which may extend to double the amount of cheque and, therefore, the sentence of fine whenever imposed by the Criminal Court upon conviction of accused under Section 138 of N.I.Act must be sufficient enough to adequately compensate the complainant.”

Therefore, the amount of cheque and the date from which the amount under the cheque had become payable along with payment of reasonable interest may serve as good guide in this regard. To make it consistent and uniform, the Bench advised to impose a fine equivalent to the amount of cheque plus at least 6% interest per annum.

Decision

Considering that the Trial Court had awarded Rs.2.00 lakh, to be paid as compensation to the complainant, when admittedly the cheque amount was to the tune of Rs.10.00 lakhs, the Bench remanded back the matter to the trial Court for considering the imposition of sentence upon the respondent de novo in the light of legal position discussed and the observations made in the instant judgment. The appeal was allowed and the impugned order was quashed to the extent it awarded sentence to the accused. [Yasir Amin Khan v. Abdul Rashid Ganie, 2021 SCC OnLine J&K 934, decided on 22-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Appellant: F.A.Wani, Advocate

For the Respondent: None

Case Briefs District Court

What is the consequence of complainant’s failure to explain the occasion for issuance of cheque in his favour? How does it affect S. 138 NI Act complaint? Del Court answers

South-West, Dwarka, Delhi: Mridul Gupta, Metropolitan Magistrate –09, on noting a very weak case of the complainant and not being able to produce sufficient evidence, dismissed his complaint filed for the dishonour of cheque under Section 138 of Negotiable Instruments Act, 1881.

Complainant alleged that the accused who had been purchasing iron plates/ sheets/ other forms of irons from the complainant was supplied the said material to the tune of Rs 8,00,000.

In the discharge of said liability, accused issued the cheques in question i.e. two postdated cheques. Complainant presented the said cheques but they were both returned with the remarks “Drawers Signature Differs”.

In view of the above, legal notice was issued but no response was received from the accused, hence the present complaint was filed.

Following issues for consideration arose:

Whether the accused had any legal debt or liability towards complainant?
Whether cheques in question were issued by accused?
Whether the legal demand notice was duly served upon the accused?

Bench noted that the complainant could not produce any reliable document regarding the alleged business transactions with the accused. Not even a single date of the transaction with the accused was mentioned by the complainant.

In Vijay v. Laxman, (2013) 3 SCC 86, the Supreme Court observed that:

“the absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance.”

As per the complainant his whole trading business was being carried out without any paper trail whatsoever, which appeared implausible. The said testimony of the complainant raised serious doubts on the credibility of the witness and suspicion was cast on the existence of any such business of complainant and supply of goods to accused.

Trite Position of Law

Dishonor of cheque due to signature of accused not matching with specimen signature could also constitute dishonour under Section 138 of the Act, and said fact, in itself, is not sufficient to escape prosecution under the said provision.

In the instant matter, it is pertinent to note that the accused denied his signatures on the cheques in question right from the stage of framing of notice and throughout the trial. Secondly, the said defence of accused was duly corroborated by the bank memos as per which both the cheques in question were each dishonored twice for the same reason i.e. ‘Drawers Signature Differs’.

Complainant could not explain the occasion for issuance of cheques in question in his favour by the accused.

Legal notice was sent to the correct address of the accused. Once the legal notice is proved to be sent by post to correct address of accused then the presumption under Section 27 of General Clauses Act, 1897 arose and it shall be presumed unless proved contrary, that legal notice sent to the address of accused was delivered to him.

Court held that,

The case of the complainant is inherently very weak as he has not been able to sufficiently prove in his evidence, the existence of any business of iron trading and the supply of such goods to accused. The lack of any business document whatsoever casts grave suspicion on case of complainant.

Concluding the matter, the bench stated that the complainant failed to prove beyond reasonable doubt the fundamental requirements of the offence that the cheque in question was issued by the accused and in discharge of legally enforceable debt or liability. [Rishi Pal v. Sunil Kumar Sharma, CC No. 32700 of 2019, decided on 23-11-2021]

Case Briefs District Court

If a cheque was issued in favour of complainant, would she still be required to prove loan transaction as she would have been in civil trial recovery? Court explains

Dwarka Courts, New Delhi: Medha Arya, MM (NI Act-03), resolved the dispute pertaining to Section 138 of Negotiable Instruments Act, 1881 in light of the 4 conditions laid down under the said Section.

Complainant was friends with one Lata Bhola for a number of years and the accused, son of Lata Bhola alongwith his mother told the complainant that they want to purchase a house but they were facing paucity of funds and requested the complainant to advance to them a friendly loan of Rs 6,30,000. Both son and mother agreed to repay the loan of complainant within 15 days, however, they avoided the repayment of the loan even after the expiry of the 15 days period.

Later, the cheque in question was issued by the accused with the assurance that it shall be duly honoured upon presentation. However, to the utter shock and dismay of the complainant, the said cheque in question was dishonoured vide cheque returning memo with remarks ‘payment stopped by drawer’.

When the accused failed to repay the cheque amount even after expiry of the 15 days from the date of service of legal notice, the complaint was filed by the complainant seeking the summoning, trial and conviction of the accused of the offence punishable under Section 138 NI Act.

Complainant’s case was that the period of limitation as per Section 142 of the N.I. Act, and the territorial jurisdiction to try the present complaint vests with this Court.

By virtue of Section 146 of NI Act, this Court is bound to presume the fact that the cheque was dishonoured for the reason mentioned in the returning memo, and this presumption has also not been dislodged by the accused.

Analysis, Law and Decision

Section 138 NI Act:

Before finding of conviction with the offence punishable under Section 138 N.I. Act can be returned against the accused, it has to be established, cumulatively-

(i) that the cheque in question was issued by the accused in favour of the complainant for the discharge of legally enforceable liability.

(ii) presentation of the cheque to the bank within three months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(iii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheques; and

(iv) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice.

In the opinion of this Court, the complainant proved on record that the cheque in question was presented by the complainant with her bank for encashment within the period of its validity. Accordingly, condition no. (ii) of Section 138 NI Act was satisfied.

Accused did not dispute that the legal notice was served upon him within the statutory period of limitation, hence condition (iii) was satisfied.

Further, the accused axiomatically admitted that he did not pay the amount of cheque in question to the complainant even after the expiry of 15 days from the date of receipt of legal notice. Therefore condition no. (iv) was satisfied.

Whether the cheque in question was issued by the accused to the complainant in discharge of legally enforceable liability?

Section 139 of the NI Act, 1881 carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with Section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was 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.

Whether presumption under Section 139 N.I. Act read with Section 118 N.I. Act can be raised against the accused?

Court opined that such presumption can be duly raised against the accused as he has admitted his signatures on the cheque in question and has also admitted that the particulars on the same were filled by him.

Whether the accused has been able to discharge the onus of proof placed upon him?

Court stated that the journey of trial qua a complaint under Section 138 NI Act commences after a determination is made that the presumption as per Sections 139/118 NI Act can be raised against the accused, from the point of the accused who is required to prove that the cheque in question was not given for consideration or for the discharge of any legally enforceable debt.

The accused took the stand all along that he had obtained a loan of Rs 2,50,000/- from the brother of the complainant, Sanjeev Nagpal, but he was not examined as a witness by the accused. The evaluation of the testimonies of the above witnesses as well as the aforementioned circumstance clearly establishes that the accused has not been successful in proving his defense in the affirmative.

Whether the accused has been able to dislodge the presumption against him under Section 139 of the NI Act, by perforating the case of the complainant?

Even if it is so conceded, the fact that the cheque in question was given to the complainant as a security cheque, in postdated condition or otherwise, does not dent the case of the complainant sufficiently.

Further, even if it is conceded that the loan was advanced by the complainant only to the mother of the accused and not to the accused and his mother together, the cheque issued by the accused can still be construed to be issued in discharge of “any other liability”, and the accused cannot avoid penal consequences of the dishonour of the cheque merely because the loan amount was not advanced to him by the complainant.

Elaborating further, the Court stated that the offence punishable under Section 138 NI Act is premised on theory of reverse onus of proof, and the complainant was not required, as she would have been required in a civil trial of recovery perhaps, to prove a loan transaction, as she had a valid cheque in question made in her favour by the accused. With the presumptions stacked against him, the first order of business required the accused to plug loopholes in the case of the complainant, and only thereafter would the requirement for the complainant to prove her case beyond reasonable doubt have arisen.

Concluding the matter, Court held that the accused failed to establish the version that he set forth in the affirmative, and in perforating the case of the complainant and dislodging the presumption of Sections 139/118 NI Act stacked against him.

Therefore, accused was convicted for the offence punishable under Section 138 NI Act. [Geetika Mehra v. Satyam Bhola, Ct. Case No. 28164 of 2018, decided on 18-11-2021]

Case Briefs Supreme Court

Section 138 NI Act| Can’t defeat the complaint merely because it does not elaborate upon Managing Director’s authorisation: SC

Supreme Court: In a case relating to dishonour of cheques where it was alleged that the complaint was filed by the managing director in his personal capacity and not on behalf of the Company, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that there could be a format where the Company’s name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company. It was further held that it would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation.

Facts

The respondent had issued 8 cheques totalling to Rs.1,60,000/- in favour of Bell Marshall Telesystems Limited, however, all the cheques got dishonoured on account of “funds insufficient” after which legal notices were issued by the beneficiary under Section 138(b) of the Negotiable Instruments Act, 1881. The demand was, however not met within fifteen days of the receipt of the notice nor was any reply sent which resulted in the complaint being filed by the Company’s Managing Director Bhupesh Rathod before the Special Metropolitan Magistrate, Mumbai. The Company also filed an affidavit through its Managing Director, i.e., Bhupesh Rathod, stating that it had authorised to file a complaint case against the respondent. A copy of the Board Resolution was also presented.

The respondent took an objection that the complaint was filed in the personal capacity of Bhupesh Rathod and not on behalf of the Company. On the other hand it was contended by the appellant that the complaint was in the name of the Company and in the cause title of the complaint he had described himself as the Managing Director. The Company was a registered company under the Companies Act, 1956. On this, the respondent contended that it is only in the aforesaid title description that the complainant is described as the Managing Director of the Company but in the body of the complaint it is not so mentioned.

Analysis

The Court took note of the facts that the description of the complainant with its full registered office address is given at the inception itself except that the Managing Director’s name appears first as acting on behalf of the Company. The affidavit and the cross-examination in respect of the same during trial supports the finding that the complaint had been filed by the Managing Director on behalf of the Company.

It, hence, noticed that the format itself cannot be said to be defective though it may not be perfect.

“The body of the complaint need not be required to contain anything more in view of what has been set out at the inception coupled with the copy of the Board Resolution. There is no reason to otherwise annex a copy of the Board Resolution if the complaint was not being filed by the appellant on behalf of the Company.”

It further explained that a Manager or a Managing Director ordinarily by the very nomenclature can be taken to be the person in-charge of the affairs Company for its day-to-day management and within the activity would certainly be calling the act of approaching the court either under civil law or criminal law for setting the trial in motion.

“It would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation. The artificial person being the Company had to act through a person/official, which logically would include the Chairman or Managing Director. Only the existence of authorisation could be verified.”

The Court considered the governing principles in respect of a corporate entity which seeks to file the complaint, as laid down in Associated Cement Co. Ltd. v. Keshavanand, (1998) 1 SCC 687, and said that,

“If a complaint was made in the name of the Company, it is necessary that a natural person represents such juristic person in the court and the court looks upon the natural person for all practical purposes. It is in this context that observations were made that the body corporate is a de jure complainant while the human being is a de facto complainant to represent the former in the court proceedings. Thus, no Magistrate could insist that the particular person whose statement was taken on oath alone can continue to represent the Company till the end of the proceedings. Not only that, even if there was initially no authority the Company can at any stage rectify that defect by sending a competent person.”

Further, the Court noticed that the signatures on the cheques were not denied. Neither was it explained by way of an alternative story as to why the duly signed cheques were handed over to the Company. There was no plea of any fraud or misrepresentation.

“It does, thus, appear that faced with the aforesaid position, the respondent only sought to take a technical plea arising from the format of the complaint to evade his liability.”

Ruling

The Court held that the complaint was properly instituted and also that the respondent failed to disclose why he did not meet the financial liability arising to a payee, who is a holder of a cheque in due course.

The Court was of the view that the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque, i.e., Rs.3,20,000/-. However, since 15 years have elapsed since the complaint was filed, the Court directed if the respondent pays a further sum of Rs.1,60,000/- to the appellant, then the sentence would stand suspended.

[Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, 2021 SCC OnLine SC 1031, decided on 10.11.2021]

*Judgment by: Justice Sanjay Kishan Kaul

Case Briefs District Court

Dishonour of Cheque | Not filling details in cheque, Non-filing of ITR by complainant, Handing over cheque as security, etc.: Delhi Court discards all defence, orders conviction under S. 138 NI Act

Saket Courts, Delhi: Swati Gupta, Metropolitan Magistrate (South) NI Act, convicted the accused for an offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881. While delivering the judgment, the Court reiterated the well-settled position of law and discarded various defence taken by the accused.

Factual Matrix

The accused approached the complainant since he needed funds to expand his business. The complainant granted a loan of Rs 76.24 lakhs to the accused and the parties executed a memorandum of understanding (MoU) in that respect. Later, in order to discharge his liability, the accused issued a cheque of Rs 5 lakhs. On presenting for encashment, the cheque was returned unpaid by the bank with the remark “funds insufficient”. Thereafter, the complainant sent a legal notice to the accused but he did not pay the amount of dishonoured cheque. Hence, the complainant moved the Court with a complaint under Section 138 of NI Act. The accused disputed his liability.

Law, Analysis and Decision

Ingredients of the offence

Before delving into the facts, the Court discussed the settled position of law applicable to the proceedings under Section 138 of NI Act. It was reiterated that to establish the offence under Section 138, the complainant must prove:

(i) the accused issued a cheque on an account maintained by him with a bank;

(ii) the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability, which is legally enforceable;

(iii) the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity;

(iv) the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured;

(v) the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque;

(vi) the drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.

The Court was of the opinion that the complainant discharged his initial burden and established the ingredients of the offence under Section 138 against the accused. In his statement under Section 313 CrPC, the accused admitted receiving the demand notice on his permanent address.

Not filling details in the cheque

The accused had admitted his signatures on the cheque but disputed filling any details of the cheque. The Court was of the opinion that such plea, even if true, had no bearing on the presumption against him. Reliance was placed on the Supreme Court decision in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, wherein it was held that filling of persons by any person other than the accused would not invalidate the cheque and shall attract the presumption under Section 139 of NI Act.

Rebutting the presumption

On rebuttal of mandatory presumption, the Court noted that the presumption under Section 139 cannot be rebutted upon a mere denial. It can be rebutted by the accused only be leading cogent evidence. Reliance was placed on K.N. Beena v. Muniyappan, (2001) 8 SCC 458. It was observed:

“the presumptions may be rebutted by the accused either by leading direct evidence and in exceptional cases, from the case set out by the complainant himself i.e. from the averments in his complaint, in the statutory notice and even the evidence adduced by the complainant during the trial.”

The Court also noted that the burden of proof is to be discharged by the accused on preponderance of probabilities.

Cheque given as ‘security’

In his defence, the accused claimed that the cheque was given as security and whatever amount was invested by the complainant, he took away assets of the business of the accused against the same and as such there was no liability towards the complainant.

The Court observed it to be a settled law that:

“handing over of cheques by way of security per se does not extricate the accused from the discharge of liability arising from such cheques.”

Even otherwise, the Court found that the accused did not led any cogent evidence to prove such plea.

Contradictions in complainant’s testimony

The accused averred that the complainant’s case was not believable as there were contradictions in his testimony. He contended that during cross-examination, the complainant stated that the loan was given for the purpose of business while in his affidavit, he termed the loan as a friendly loan.

The Court found that the complainant consistently stated that the loan was given for the purpose of investment in business of the accused. It was considered opinion of the Court that mere terming of the loan as friendly in one sentence of his testimony was not a contradiction so material as to discredit the entire case of the complainant.

Loan amount disputed

The accused disputed the loan amount claiming that it was not Rs 76.24 lakhs but much less. The Court was of the opinion that the accused was not able to prove this plea. He admitted the execution of MoU which specified the loan amount as Rs 76.24 lakhs. Thus, there being a written document to that effect, the accused could not be allowed to verbally contradict or vary the terms of the same in light of Section 92 of the Evidence Act, 1872.

Non-filing of ITR by the complainant

The accused contended that the complainant did not file his Income Tax Return along with the complaint which rendered the fact of alleged loan transaction improbable.

The Court found that during complainant’s cross-examination, no suggestion was put to him on the aspect of non-filing of ITR or to question if the loan was disclosed in the ITR or not or to challenge the transaction of loan on the basis of the same. The complainant duly placed on record the MoU executed between the parties, which was admitted by the accused. Thus, the Court held that non-filing of ITR by the complainant was of no consequence.

Financial capacity of the complainant

The accused contended that the statement of account of complainant’s business during the relevant period when the loan was allegedly given, showed a balance of about Rs 6800, which showed that the complainant had no financial capacity to extend a loan of Rs 76.24 lakhs.

On this, the Court found that the complainant was running two businesses and the financial capacity of the complainant could not be held to be questionable only because balance in one of his business accounts was less. Further, during cross-examination of the complainant, the accused never questioned his source of funds or financial capacity. Thus, a mere allegation that financial capacity of the complainant was not adequate as one of his business accounts had low balance did not hold water.

The remaining defence taken by the accused was also discarded by the Court as either not proved or not relevant.

In such a view of the matter, the Court concluded that the accused miserably failed to rebut the mandatory presumptions under Section 118(a) and Section 139 of NI Act even on a preponderance of probabilities, while the complainant succeeded in proving his case beyond a reasonable doubt. Accordingly, the accused was held guilty and was convicted for the offence under Section 138 of the Negotiable Instruments Act. [Zikrur Rahman Khan v. Anwar Ahmad, Complaint Case No. 470901 of 2016, dated 11-11-2021]

Case Briefs High Courts

Ker HC | Absence of salutation like M/s, Mr or Miss while drawing a cheque is immaterial for offence under S. 138 of NI Act; HC sets aside the acquittal, directs Trial Court to re-address the issue

Kerala High Court: Gopinath P., J., held that adding or omitting prefix like M/s, Mr And Mrs. while drawing the cheque is immaterial.

The appellant was the Managing Partner of a firm by name ‘Lakshmi Finance’, which was stated to be a partnership firm. An allegation was made with regard to commission of an offence under Section 138 of the Negotiable Instruments Act before the Trial Court, wherein the Trial Court had acquitted the respondent-accused on the sole ground that the subject cheque was drawn in favour of ‘Lakshmi Finance’ and not ‘M/s.Lakshmi Finance’, though it was seen from the partnership deed that the name of the firm was ‘M/s.Lakshmi Finance’.

“The alphabets ‘M/s’ which is short form for ‘Messrs’ is normally a salutation intended to refer to a group of unincorporated persons, such as a partnership firm. The absence of such salutation while drawing the cheque by the respondent-accused cannot be a ground for the accused to be acquitted.”

The Bench explained, such a view is as good as saying that if the payee is not referred to in the cheque as ”Mr……..”, the accused had to be acquitted.

Accordingly, the appeal was allowed, the judgment of the Trial Court acquitting the respondent-accused was set aside and the case was restored to the file of the Trial Court for disposal in accordance with law. [N. Raveendran v. Shajahan, 2021 SCC OnLine Ker 3921, decided on 06-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Appellant: Adv. P.V.Elias

For the Respondent: Adv. Renjith George, Public Prosecutor

Case Briefs District Court

Presumption and Rebuttal under NI Act: Read Court’s verdict discussing onus of proof and nature of defence where “payment stopped by drawer”

Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru: Vani A. Shetty, XVII Additional Judge, Court of Small Causes & ACMM, addressed a matter with respect to the liability of the accused in a case of dishonour of cheque under Section 138 of the Negotiable Instruments Act, 1881.

In the present case, the accused was tried for the offence punishable under Section 138 of the Negotiable Instruments Act.

Factual Background

Complainant with an intention to have a South Africa trip paid Rs 24 lakhs to the accused to book the tickets. But the accused failed to book the tickets and repaid a sum of Rs 14.5 lakhs to the complainant and sought time for the payment of balance amount of Rs 9.5 lakhs. Towards the discharge of the said liability, the accused issued a cheque for Rs 4,50,000 assuring that the cheque would be honoured if presented for payment.

But the cheque came to be dishonoured on the grounds of ‘payment stopped by drawer’. Thereafter the complainant got issued a legal notice demanding repayment of the cheque amount within 15 days. Due to no response from the accused, an instant complaint was filed.

In view of sufficient ground to proceed further, a criminal case was registered against the accused, and she was summoned.

Question for Consideration:

Whether the complainant proved that the accused has committed an offence punishable under Section 138 of the NI Act, 1881?

Analysis, Law and Decision

While analyzing the matter, Bench stated that in order to constitute an offence under Section 138 NI Act, the cheque shall be presented to the bank within a period of 3 months from its date. On dishonour of cheque, the drawer or holder of the cheque may cause demand notice within 30 days from the date of dishonour, demanding to repay within 15 days from the date of service of the notice.

“If the drawer of the cheque fails to repay the amount within 15 days from the date of service of notice, the cause of action arises for filing the complaint.”

In the present matter, the complainant had complied with all the mandatory requirements of Section 138 and 142 of the NI Act.

Section 118 of the NI Act lays down that until the contrary Is proved, it shall be presumed that every Negotiable Instrument was made or drawn for consideration.

Section 139 NI Act contemplated that unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole of any debt or liability.

In a catena of decisions, it has been repeatedly observed that in the proceeding under Section 138 of NI Act, the complainant is not required to establish either the legality or the enforceability of the debt or liability since he can avail the benefit of presumption under Sections 118 and 139 of the NI Act in his favour.

Further, it was observed that by virtue of the presumptions, accused had to establish that the cheque in question was not issued towards any legally enforceable debt or liability.

Later in the year 2006, the Supreme Court in the decision of M.S. Narayan Menon v. State of Kerala, (2006 SAR Crl. 616), has held that the presumption available under Section 118 and 139 of N.I. Act can be rebutted by raising a probable defence and the onus cast upon the accused is not as heavy as that of the prosecution.

Further, in the Supreme Court decision of Krishna Janarshana Bhat v. Dattatreya G. Hegde, (2008 Vo.II SCC Crl.166), the Supreme Court held that the existence of legally recoverable debt was not a presumption under Section 138 NI Act and the accused has a constitutional right to maintain silence and therefore, the doctrine of reverse burden introduced by Section 139 of the NI Act should be delicately balanced.

Bench, in conclusion, observed that the presumption mandated by Section 139 of NI Act does indeed include the existence of legally enforceable debt or liability, it is a rebuttable presumption, open to the accused to raise defence wherein the existence of the legally enforceable debt or liability can be contested.

If the accused is able to raise a probable defence, which creates doubt about the existence of legally enforceable debt or liability, the onus shifts back to the complainant.

Court stated that if the accused was able to probabalise that the disputed cheque was issued due to the intervention and pressure of the police, it may not be justified to draw the presumption contemplated under Section 139 NI Act.

It was added that if the police would have really interfered, the accused could have produced some evidence to show the intervention of the police. But there was absolutely no evidence on record to show that cheque was issued either due to pressure of police or due to some other compulsion.

In Court’s opinion, the Court was required to draw the presumption under Section 139 NI Act in favour of the complainant.

Court noted that in the present matter, accused at no point in time asked the complainant to pay the balance amount. Instead, she had kept quiet by enjoying the huge amount of Rs 24 lakhs which clearly indicated that the non-purchase of the ticket was not on account of the non-payment of the remaining amount. Further, there was no forfeiture clause.

For the above, Bench stated that in the absence of the forfeiture clause, the accused could not have retained the amount of the complainant with her, the said was barred by the doctrine of unlawful enrichment under Section 70 of the Indian Contract Act, 1872.

Hence, even if it was held that the complainant was a defaulter in respect of the payment of the remaining amount, the accused was legally liable to repay the amount received by her from the complainant.

In view of the above reasons, guilt of the accused was proved under Section 138 NI Act. [Srinivas Builders and Developers v. Shyalaja, CC No. 57792 of 2018, decided on 13-10-201]

Advocates before the Court:

For the Complainant: V.N.R., Advocate

For the Accused: J.R., Advocate

Case Briefs District Court

Mere denial is useless, Presumption under S. 138 NI Act can be rebutted only by leading cogent evidence: Court holds accused guilty where “payment stopped by drawer”

Saket Courts, New Delhi: Swati Gupta, Metropolitan Magistrate reiterated what is expected of an accused to rebut the statutory presumption against him in cases of cheque dishonour under Section 138 of the Negotiable Instruments Act, 1881.

Brief facts

Complainant and accused had entered into an agreement to sell the property owned by the wife of accused for a total sale consideration of Rs 58 lakhs. The said property was to be purchased in the name of the wife of the complainant.

For the above said purchase complainant made an advance payment of Rs 24 lakhs to the accused. Later, the accused backed out of the deal and was liable to return the amount paid by the complainant as advance. Further, to discharge his liability, in part, the accused issued the cheque for a sum of Rs 5 lakhs in favour of the complainant.

When the complainant presented the cheque in question for encashment at his bank, the said cheque was returned unpaid with remarks “payment stopped by drawer”.

Thereafter, the complainant issued a legal demand notice to the accused, demanding payment of the dishonoured cheque amount. Despite the notice, the amount was not paid within 15 days mandatory payment.

In view of the above background, the present complaint under Section 138 of the Negotiable Instruments Act, 1881 was moved before the Court.

Settled Legal Position of Law

Under Section 138 of the NI Act against the accused, the complainant must prove the following:

(i) the accused issued a cheque on an account maintained by him with a bank.

(ii) the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability, which is legally enforceable.

(iii) the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.

(iv) the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.

(v) the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.

(vi) the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.

The Court noted that the complainant discharged its initial burden and successfully established the above-stated ingredients of offence under Section 138 of the NI Act against the accused.

Rebuttal of the Mandatory Presumption

It is settled law that the presumptions may be rebutted by the accused either by leading direct evidence and in exceptional cases from the case set out by the complainant himself. The burden of proof was to be discharged by the accused on a preponderance of probabilities.

Further, the presumption under Section 139 of the NI Act cannot be rebutted upon a mere denial. The same can be rebutted by the accused only by leading cogent evidence.

The Court found that admittedly, Rs 24 lakhs were paid by the complainant to the accused towards advance payment for purchase of the subject property, The cancellation agreement specifying the details of the cheque in question was also admittedly, executed between the accused and the complainant.

The cheque in question was issued by the accused to the complainant in discharge of part liability in pursuance of the cancellation agreement.

In the Court’s opinion, the accused miserably failed to rebut the mandatory presumptions under Section 118(a) and 139 of the NI Act even on a preponderance of probabilities, while the complainant succeeded in proving his case beyond reasonable doubt.

Therefore, accused was held guilty and convicted of the offence under Section 138 of the NI Act. [Ramesh Kumar v. Balwant Singh, CT No. 466077 of 2016, decided on 12-10-2021]

Case Briefs District Court

Law on Dishonour of Cheque | Loan given in cash, no documentary evidence available. Lender files a complaint under S. 138 NI Act: Read how ‘presumption’ under S. 118 (a) plays a role

Patiala House Courts, New Delhi: Prayank Nayak, MM-01 acquitted the accused of offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1885, holding that the accused successfully dislodged the statutory presumption.

In the present matter, complaint was filed under Section 138 of the Negotiable Instruments Act, 1881 for the dishonour of cheque for an amount of Rs 6,82,000 and failure to pay the said amount despite legal demand notice.

Path Paving to this Matter

Complainant had given a loan of Rs 6,82,000 to the accused in cash and later the accused had issued a cheque for the repayment of the loan. Though the same was dishonored upon its presentation and no payment was made despite the receipt of legal demand notice.

Analysis, Law and Decision

Offence under Section 138 of the Negotiable Instruments Act consists of the following ingredients:

The cheque was drawn by drawer on an account maintained by him with the banker for payment of any amount of money out of that account.
The said payment was made for discharge of any debt for other liability in whole or in part.
The said cheque was returned unpaid by the bank.
The cheque was presented to the bank within a period of 3 months from the date on which it was drawn or within the period of its validity whichever is earlier.
The payee or the Holder in due course of the cheque as the case may be makes a demand for the payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
The drawer of the cheque fails to make the payment of the said amount of money to the payee or as the case may be the Holder in due course of the cheque within 15 days of the receipt of the said notice.
The payee or the Holder in due course of the cheque shall make a complaint in writing within one month of the date on which the Cause of Action arises i.e., 15 days from the receipt of the notice by the drawer.

In the present matter, it was noted that the receipt of legal notice was accepted and the duly replied and the dishonour memo issued by the bank was also placed on record.

Court stated that by virtue of Section 146 of NI Act, the dishonour of cheque in question had to be presumed.

Onus to prove

As per Section 118 (g) of NI Act, the holder of the cheque is presumed to be holder in due course, hence the accused has to prove that the cheque was not issued to the complainant.

Accused had admitted the signature on the cheque, thus presumption under Section 118(a) of the NI Act and Section 139 of NI Act will be drawn.

Delhi High Court’s decision in Devender Kumar v. Khem Chand,2015 SCC OnLine Del 12578, it was held that:

“However, in Rangappa v. Sri Mohan, (2010) 11 SCC 441, a three judges’ bench of the Supreme Court held that Section 138 of the N.I. Act includes the presumption enforceable debt or liability and that the holder of the cheque is presumed to have received the same in discharge of such debt or liability……. without doubt, the initial presumption is in favour of the complainant.” (Para 20).

Whether the accused has been able to dislodge the presumption of liability as well as issuance on the basis of cross-examination of complainant and the evidence led by him?

In the instant matter, it is very pertinent to note that there is no written/documentary proof of loan and the complainant has also not mentioned any date of giving loan amount.

Due to the above-stated observation, Bench stated that as there was absence of documentary proof as well as the date of giving loan, the whole case seems to be doubtful.

What all makes this case doubtful?

Court noted that complainant despite having friendly relations and extending friendly loan of large amount to the accused is not even aware about the name of wife of the accused nor could tell whether accused is having kids or not. Though it has been claimed by him that he knows the accused of around 5 years, but he has never gone inside the house of the accused.

The above stated makes it doubtful for the Court to believe that the relations between the parties were such that the complainant would lend the stated sum to the accused that too without any documentary evidence.

Discrepancy in complainant’s oral testimony and bank statement was found along with discrepancy in photocopy of his Balance-Sheet and certified copy of the same.

The above-stated discrepancies strike the root of the complainant’s case.

Complainant in his cross-examination admitted that he had to pay loans to various persons and institutions, this fact leads the Bench to the question of why a person himself being liable to pay loan to various persons would advance loan of more than Rs 6 lakhs to some other person.

Therefore, accused dislodged the presumption in favour of the complainant by impeaching his credit during cross-examination and due to the absence of documentary proof.

Complainant did not examine any witnesses to prove the loan transaction and the above discussion cast doubt over the complainant’s version that he had given loan to the accused.

In Delhi High Court’s decision, Kulvinder Singh v. Kafeel Ahmad, 2014 (2) JCC (NI) 100 it was observed that,

“The basis principle in Criminal law is that the guilt of respondent/accused must be proved beyond reasonable doubt and if there is slightest doubt about commission of an offence then the benefit has to accrue to him”.

“…Benefit of doubt has to accrue to the accused.”

Court acquitted the accused for the offence under Section 138 NI Act. [Balwant Singh v. Angad Makol, R. No. 55576 of 2016, decided on 5-10-2021]

Case Briefs District Court

Law on S. 138 NI Act | Cheque dishonored, case filed under S. 138 NI Act: Can borrower raise defense that lender had no financial capacity to lend money? Complete report on ruling by Tis-Hazari Courts

Tis Hazari Courts, New Delhi: Devanshu Sajlan, MM NI Act-05, while noting the ingredients of Section 138 of the Negotiable Instruments Act, 1881 acquitted a person charged for offence punishable under Section 138 NI Act.

Factual Matrix

Present complaint was filed under Section 138 of the Negotiable Instruments Act, 1881.

Complainant had granted a friendly loan of Rs 21,00,000 to the accused for two months for some urgent need of the accused.

To discharge the legal liability, the accused issued two cheques in favour of the complainant firm, but the same were returned by the bank as no balance was available in the account. Thereafter, Complainant sent a legal notice but the accused allegedly failed to pay the cheque amount and hence, the complainant filed the present complaint.

Accused denied having taken a loan of Rs 21,00,000 from the complainant and instead stated that he took a loan of Rs 5,00,000 and had already paid the same. He added that he had given three blank signed cheques as security cheques which were misused by the complainant.

Discussion

In the present matter, the complainant proved the original cheques that the accused had not disputed as being drawn on the account of the accused.

Court stated that giving a blank signed cheque does not erase the liability under the NI Act. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may subsequently fill up the amount and other particulars (Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, ¶ 34).). The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability.

Legal Notice

It is settled law that an accused who claims that she/he did not receive the legal notice, can, within 15 days of receipt of summons from the court, make payment of the cheque amount, and an accused who does not make such payment cannot contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act [C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555).

Maintainability | Complainant is an unregistered partnership firm

It was contended that the present complaint was barred under Section 69(2) of the Indian Partnership Act. The firm was unregistered and hence the complaint was barred under the stated section.

A simpliciter reading of Section 69(2) would show that it is intended to apply to only suits, and that it would have no application to a criminal complaint.

Hence, the bar imposed on unregistered firms under Section 69(2) of the Indian Partnership Act does not apply to a criminal complaint under Section 138 NI Act.

Non-Existence of Debt

Complainant is required to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt.

Court stated that as per the NI Act, once the accused admits signature in the cheque in question, certain presumptions are drawn, which result in shifting of onus on the accused and in the present matter, the issuance of cheques was not denied.

The combined effect of Section 118(a) NI Act and Section 139 of the NI Act is that a presumption exists that the cheque was drawn for consideration and given by the accused of the discharge of debt or other liability.

Rebuttal

Misuse of the security cheque

Bench stated that it is immaterial whether the cheque had been filled by the complainant once the cheque has been admitted being duly signed by the drawer-accused.

Complainant did not have the financial capacity to grant the alleged loan

It is a settled position of law that in case of cash transaction, showcasing that complainant did not have the adequate financial capacity to lend money to the accused amounts to a probable defense and can help in rebutting the presumption that is accrued to the benefit of the complainant in cheque dishonor cases.

In Basalingappa v. Mudibasappa, (2019) 5 SCC 418, the Supreme Court has observed as follows:

During his cross-examination, when financial capacity to pay Rs. 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.

(emphasis added)

Hence, the Court stated that in cases in which the underlying debt transaction is a cash transaction, the accused can raise a probable defense by questioning the financial capacity of the complainant, and once the said question is raised, the onus shifts on the complainant to prove his financial capacity.

Bench on perusal of the record of the present case, agreed with the submission of the counsel of the accused, since the record created adequate doubts over the financial capacity of the complainant to advance the loan in question.

Conclusion

Hence, Court opined that the complainant failed to establish that it had the financial capacity to advance a loan of Rs 21,00,000 to the accused.

Therefore, accused successfully rebutted the presumption under Section 139 NI Act and the complainant failed to discharge the shifted onus.

“…even if the cheque presented by the complainant was returned unpaid by the bank, the complainant cannot prosecute the accused, as the requirement of the existence of legal liability has not been satisfied in the present case, since the accused has been able to establish a probable defence by creating a credible doubt over the existence of the alleged loan transaction.”

Concluding the matter, Bench held that complainant failed to prove the case beyond a reasonable doubt, hence the accused was acquitted from the charge of offence punishable under Section 138 of the NI Act. [S.S. Auto Gallery v. Vaneet Singh, 21636 of 2016, decided on 9-10-2021]

Advocates before the Court:

Manjeet Singh, counsel for the complainant.

D.K Ahuja, for the accused.

Case Briefs District Court

Accused has to rebut presumption under NI Act, once signature on cheque is admitted? Delhi Saket Courts examines

South-East District, Saket Courts, New Delhi: Bhanu Pratap Singh, MM (N.I. Act) found the accused guilty of an offence under Section 138 of the Negotiable Instruments Act, where the accused had admitted signatures on the cheque and also failed to make the payment within 15 days of receipt of summons.

Background

Accused took a loan of Rs 2,50,000 from the complainant through cross payee cheque drawn on ICICI Bank in his favour for a period of 6 months and the accused executed acknowledgment and promissory note under his signatures and the said amount carried interest at the rate of 18% p.a. from the date of payment till realization.

Complainant time and again demanded the said loan amount together with interest however, accused showed her inability to repay the said loan amount and always insisted to extend the time for repayment of the said loan amount along with interest.

In the discharge of her part legal liability, the accused issued a cheque for the amount of Rs 2,50,000 under her signature in favour of the complainant leaving the interest part on the said loan amount apart.

As per the instructions of the accused, the complainant presented the above-mentioned cheque for encashment and the same was dishonoured vide bank memo dated 04.12.2014 with remarks ‘Funds Insufficient’.

Thereafter, complainant sent a legal notice under Section 138 NI Act, calling upon the accused to make the payment within 15 days of the receipt of the legal notice as prescribed under Section 138 of the NI Act. Even after the expiry of 15 days stipulated period, the accused did not make the payment, therefore, the accused committed offence under Section 138 of NI Act and the present case was filed by the complainant.

Analysis, Law and Decision

Accused admitted her signatures on the cheque on question in her statement under Sections 251 and 313 CrPC.

In Supreme Court’s decision of Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283 , it was held that:

The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then the ‘reverse onus’ clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him.

Court stated that once the accused had admitted her signatures on the cheque in question, presumption under Section 118 and 139 of the NI Act was drawn in favour of the complainant. Hence, it was upon the accused to rebut the presumption under Section 139 NI Act by raising a probable defence in his favour on a scale of preponderance of probabilities.

Accused took the defence in her statement under Section 251 CrPC that she does not know whether she received the legal notice.

The above plea of the accused was not tenable by virtue of the Supreme Court decision in CC Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, wherein it was held that:

“Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along-with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act”.

Therefore, the accused failed to raise a probable defence in his favour on a scale of preponderance of probabilities and consequently, the presumption under Section 118(a) and 139 of NI Act drawn in favour of complainant had not been rebutted and complainant proved the ingredients of Section 138 NI Act beyond reasonable doubt.

Hence, accused was found guilty for the offence punishable under Section 138 NI Act. [Om Avtar (HUF) v. Shashi Jindal, CC No. 631088 of 2016, decided on 5-10-2021]

Factual Background

Analysis, Law and Decision

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Arunima Bose, Editorial Assistant has reported this brief.

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Analysis, Law and Decision

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Analysis, Law and Decision

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