Case BriefsHigh Courts

Jammu and Kashmir High Court, Srinagar: Sanjeev Kumar, J., while addressing a matter in respect to Section 138 NI Act, stated that

“…issuance of process and putting a person to trial is a serious matter and the Magistrate, while exercising such power cannot afford to be mechanical or lackadaisical.”

Petitioner has sought quashment of the Order passed b Judicial Magistrate in the case file titled as Aijaz Ahmad Dar v. Zulfikar Ahmad Dar, whereby and where under trial court has while taking cognizance of complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, has issued the process for appearance of the accused (petitioner).

Respondent instituted a complaint under Section 138 NI Act against the petitioner in trial court. It was alleged that respondent had lent more than two crores and seventy-five thousand to the petitioner through different modes.

Petitioner had paid part of the said amount and was reluctant t pay the balance amount. But the matter was settled in the month of October/November 2019. Petitioner discharged his liability by making payment of Rs 40 Lakhs in cash and issued 4 cheques for amount of Rs 32 Lakhs and amount of Rs 10 lakhs was to be paid in a short period of time.

Further, it was stated that before the respondent could present the cheques for encashment to the bank, he was requested by the petitioner not to present cheque dated 10-05-2020 for an amount of Rs.10 lacs for encashment with a promise that petitioner would make the payment of the entire amount once the lockdown imposed by the Government due to COVID-19 was lifted.

Petitioner did not keep his promise and respondent presented the remaining three cheques which were all dishonoured for the reason of insufficient balance. On informing the petitioner about the same, he was requested by the respondent to pay the amount of Rs 42 lakhs but he avoided the same.

In view of the above, respondent served a demand notice. Despite having received the same, petitioner failed to liquidate the amount and hence the respondent filed the complaint which is impugned in the present petition.

Analysis, Law and Decision 

Understanding of the term ‘Cognizance’

High Court explained the meaning of the word “Cognizance”. The said word means ‘knowledge’ or ‘notice’ and taking cognizance of offence means, ‘taking notice’ or ‘become aware of the alleged commission of offence’.

The term ‘cognizance of offence’ is nowhere defined in the Code of Criminal Procedure.

Further, the Bench stated that Sections 190 to 199 of the CrPC deal with method and the limitations, subject to which various criminal Courts ought to take cognizance of offences.

In the Supreme Court decision of R. R. Chari v. State of U.P, AIR 1962 SC 1573, held that:

 “Taking cognizance does not mean any formal action or accepted action of any kind but occurs as soon as a magistrate, as such involves his mind to the suspected commission of the offence.”

Court observed that generally the Magistrates, before whom the complaint of facts constituting offences are presented, mix up the ‘cognizance’ and the ‘issuance of process’.

The cognizance in matters like the present one is taken under Section 190 CrPC and it is only after the Magistrates takes cognizance under Section 190 CrPC, he proceeds to record the preliminary statement of the complainant and his witness, if any present, so as to find out whether the allegation in the complaint, which constitutes an offence, are substantiated.

Sometimes on not being satisfied after taking cognizance, the Magistrate postpones the issue of process and resorts to inquiry under Section 202 of CrPC.

Preliminary Statement and Section 138 NI Act

High Court made a very pertinent observation that, in the matter of complaint under Section 138 NI Act, in which the ingredients of offence are clearly pleaded and made out with the support of documentary evidence, the omission to discuss the preliminary statement of the complainant and his witness may be an irregularity, but that would not vitiate proceedings unless in the Court’s opinion a failure of justice has in fact been occasioned.

In view of the above-stated discussion, Court did not accept the plea of the petitioner that for not discussing and analysing preliminary statements of complainant and his witness the impugned order is vitiated.

Another observation laid down in view of the facts of the present matter was that, in a case involving the dispute purely of a civil nature, the criminal law cannot be set in motion but, it is equally well settled that certain offences like the offences of cheating, criminal breach of trust, criminal misappropriation and offence under section 138 of the NI Act do arise out of the civil transactions and if the ingredients of offence/offences are made out, criminal law too can be set in motion alongside the civil remedy for resolution of the dispute. 

Mens Rea and Dishonour of Cheque

Section 138 creates a statutory offence in the matter of dishonour of cheques on the grounds of insufficiency of funds in the account maintained by a person with the banker and that it exceeds the amount arranged to be paid. Generally, in the criminal law, mens rea is an essential component of crime but dishonour of cheque is a criminal offence where there is no need to prove a mens rea.

In the present matter, enough material was appended to put the petitioner on notice to face the trial.

Hence, complaint filed by the respondent and impugned summoning order issued by the trial court were fully in consonance with the law and required no interference.

In view of the above, petition was dismissed. [Zulfikar Hussain Dar v. Aijaz Ahmad Dar, 2021 SCC OnLine J&K 345, decided on 17-05-2021]

Case BriefsSupreme Court

Supreme Court: In a case where 2 persons died after being shot during a celebratory firing in a wedding ceremony, a furious 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ said,

“Incidents of celebratory firing are regretfully rising, for they are seen as a status symbol. A gun licensed for self­ protection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents.”

In the incident dating back to 2007, celebratory gunshots were fired by the accused due to which, out of the 5 injured persons, 2 succumbed to their injuries. Pleading not guilty, the accused argued that he had no intention to cause anyone’s death. He stated that the firing was accidental and was caused by a ball with which some children were playing. The ball struck against the gun in his hand and led to the firing of shots.

Refusing the accept the submission, the Court noticed that the version of eye­witnesses completely belies such a defence story.

“Otherwise also, it does not appeal to common sense that a ball would strike the gun in appellant’s hand resulting in an undersigned firing. Unless the safety lock of the gun was moved forward, the gun wouldn’t go off automatically even if its butt was hit by a play­ball.”

The Court took note of the evidence on record which showed that the appellant aimed the gun towards the roof and then fired. It noticed that though it was an unfortunate case of mis­firing, the appellant of course cannot absolve himself of the conclusion that he carried a loaded gun at a crowded place where his own guests had gathered to attend the marriage ceremony. He did not take any reasonable safety measure like to fire the shot in the air or towards the sky, rather he invited full risk and aimed the gun towards the roof and fired the shot. He was expected to know that pellets could cause multiple gun­shot injuries to the nearby persons even if a single shot was fired.

“Appellant cannot escape the consequences of carrying the gun with live cartridges with the knowledge that firing at a marriage ceremony with people present there was imminently dangerous and was likely to cause death.”

The appellant was, thus, held guilty of an act, the likely consequences of which including causing fatal injuries to the persons being in a close circuit, are attributable to him. The offence committed by the appellant, thus, would amount to ‘culpable homicide’ within the meaning of Section 299, though punishable under Section 304 Part 2 of the IPC.

[Bhagwan Singh v. State of Uttarakhand, CRIMINAL APPEAL NO. 407 OF 2020, decided on 18.03.2020]

Business NewsNews

Government e Marketplace (GeM) and Competition Commission of India (CCI) entered into a Memorandum of Understanding on 6th February 2019 to enable a fair and competitive environment in the e-Marketplace.  Chairman CCI, A.K. Gupta, CEO GeM, S. Radha Chauhan, Members of CCI, U.C. Nahta and Sangeeta Verma were present on the occasion along with officers of CCI and GeM.

Both CCI and GeM appreciate the importance of advanced analytical tools and processes for identification of malpractices like cartelization. In order to pool their knowledge of the public procurement domain for detection of Anti-competitive practices, the MoU has been signed.

GeM is a state-of-the-art national public procurement platform of Ministry of Commerce and Industries, that has used technology to remove entry barriers for bonafide sellers and has created a vibrant e-marketplace with a wide range of goods and services.

Competition Commission of India is a statutory body of the Government of India, responsible for enforcing the Competition Act, 2002 throughout India and to prevent activities that have an adverse effect on competition.

Source: PIB

Picture Credits: PIB

Ministry of Commerce & Industry

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court comprising of S.P. Garg, J., allowed a criminal appeal, setting aside the conviction of the appellant under Section 489B and 489C of the IPC.

The appellant had been arrested on account of possessing and trying to use as genuine, some fake currency notes while buying from a shop. The appellant had pleaded innocence. The Court analyzed the circumstances surrounding the arrest and noted that the accused possessed 7 more Rs. 500/- denomination notes at the time of arrest out of which one more was counterfeit while the rest were genuine. The fake notes were such that they had to be tested with an instrument to establish that they were fake. The appellant had offered to switch the note he had given to the shopkeeper with any other note in his possession. Also, the appellant had not tried to run away. There were also discrepancies during the investigation and during the examination of witnesses.

The Court, while noted the settled position that mere possession of a counterfeit currency note is not enough to establish the guilt. Further, nothing had come on record to show that the appellant had reasons to believe that the note used by him was counterfeit. Presumption of knowledge from mere possession can only be drawn if the notes were apparently counterfeit. Further, the Court relied on the judgment in M.Mammutti v. State of Karnataka, (1979) 4SCC 723 : AIR 1979 SC 1705 to state that only if counterfeit notes are of such nature that mere look at that them would not convince a person that it is counterfeit then no presumption of knowledge can be attributed to the person merely possessing them. In the light of the above reasons, the appeal was allowed, sentence set aside. [Sunder Lal v. State Govt. of NCT of Delhi, 2018 SCC OnLine Del 9079, decided on 16-05-2018]

Case BriefsHigh Courts

Karnataka High Court: A criminal petition was filed under Section 482 CrPC praying to set aside the order of trial Judge; wherein a Single Judge Bench comprising of K.N. Phaneendra, J. held that the trial Judge erred in convicting the petitioner under Section 307 IPC.

The petitioner was accused of inter alia, offence under Section 307. It was alleged by the complainant that the accused was driving a Scorpio car. When the complainant tried to stop the said vehicle, the accused drove the vehicle backwards and stopped thereafter. The accused was charge-sheeted for offence under Section 307. Learned counsel for the petitioner-accused submitted that the contents of the FIR do not show any material to attract the offence under Section 307 IPC.

The High Court perused Section 307 IPC and was of the opinion that in order to attract the provisions of Section 307, there must be intention or knowledge on part of the accused. In such circumstance, if that act of the accused caused death of the victim, he would have been guilty of murder; but if the person survives then the offence under Section 307 is made out. Also, irrespective of the injuries sustained by the party, there may be constitution of offence under Section 307 of IPC.

In the instant case, the Court found that, there was no allegation in the FIR to show that the complainant was behind the car when accused drove the vehicle backwards. Also none of the witnesses made any allegations that the accused tried to run the car over the complainant. The Court was of the view that there was no material to establish that the accused had any knowledge or intention to do away with the life of the complainant.

Accordingly, the petition was allowed and the proceedings against the petitioner under Section 307 IPC were quashed. [Faizal v. Mohamad Aris, Crl. Petition No. 6826 of 2017, order dated 5.12.2017]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Pratibha Rani, J, dismissed an appeal against conviction under Section 307 of the IPC. The appellant submitted before the Court that he had no motive to cause death of the injured as they did not know each other and had no enmity between them. The appellant cited these as grounds for motive being absent. The appellant further contended that he had been identified on the basis of a dossier from a Test Identification Parade.

The facts in brief are that, the injured had gone to take dinner at Zakhira and while returning near Zakhira and while returning he was stopped by a boy who asked him to hand over his valuables. Upon denial, the said boy, pushed and slapped him before stabbing him below the abdomen. The injured then ran towards the factory, where he resided. He was later taken to Hindu Rao Hospital by his brother Arjun Singh who also informed the PCR. The injured identified the assailant from the dossier shown during the Test Identification Parade.

Considering the nature of the stab wound on the vital part of the body, the nature of the weapon and the manner in which it was used, along with the motive i.e frustration on not being able to get valuables from the injured, the necessary intention and knowledge of causing injury can be clearly inferred. Appeal dismissed. [Mohd. Khurshid v. State, 2017 SCC OnLine Del 11534, decided on 08.11.2017]