Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., decided a matter concerning dishonour of cheque.

Petitioner had filed a suit for recovery of Rs 1,65, 75,000 under Order XXXVII of the Code of Civil Procedure, 1908.

Background

Managing Director and other Directors of the respondent/defendant persuaded the petitioner/plaintiff to give friendly loans at an interest @18% per annum. Petitioner and his wife gave Rs 18,00,000 from the bank account to Hari Om Anand as the Managing Director of the respondent/defendant.

At the request of Hari Om Anand, the petitioner/plaintiff also started looking after the legal consultation work of the respondent/defendant and the Managing Director and other Directors. Subsequently, the petitioner/plaintiff gave another friendly loan of Rs 3,20,00,000 from his bank account to Hari Om Anand and continued to take care of the legal work.

Further, Petitioner/Plaintiff submitted that 6 cheques were issued by Hari Om Anand. The said cheques were dishonoured on presentation due to insufficient funds. The petitioner/plaintiff filed a criminal case under Section 138 NI Act.

The above was preceded by a notice to which no reply was sent.

In an appearance respondent/defendant offered to furnish a corporate guarantee duly signed by the Managing Director and duly authorized by the Board Resolution relating to immovable properties, for securing the suit amount and the restrain order was filed.

Present petition was filed against two orders of the trial court.

Vide an Order dated 28-7-2020, this Court observed that the trial Court had erred in not securing the amount of Rs 1.5 crores as directed in the order dated 24-12-2019 and ought to have asked the respondent/defendant to submit documents of a property of which the title was clear or a bank certificate recording a no objection to the creation of a second charge on the property to the extent of Rs 1.5 crores ought to have been furnished.

Vide orders dated 4-12-2020, this Court had after noting the letter of the Punjab National Bank, Gymkhana Branch, Meerut, U.P. that a lien had been created in the sum of Rs 1.50 crores, directed that the said amount of Rs 1.50 crores be deposited in an interest-bearing fixed deposit. This FDR had since been deposited in the Registry of this Court as was noted in the orders of this Court dated 5-03-2021 and 8-03-2021

Further, the petitioner’s counsel submitted that trial court had wrongly granted leave to defend the respondent in a case where the respondent/defendant had raised no triable issues.

Adding to the above, it was stated that trial court had proceeded in a wrong direction as the loan transactions between the petitioner/plaintiff and the respondent/defendant were different transactions and had nothing to do with the payment of Rs.1.50 crores, which was towards the legal fees of the petitioner/plaintiff and for which the invoice had been raised.

There was no dispute in that the petitioner/plaintiff had acted as a legal advisor to the respondent/defendant.

There was no document to establish a lawyer-client relationship, no retainership agreement had been filed and therefore, the claim of the petitioner/plaintiff was suspicious that he was entitled to a sum of Rs 1.50 crores towards such legal assistance.

As regards the question whether leave to defend has been rightly granted to the respondent/defendant or not, the facts that prevailed upon before the learned Trial Court were that the petitioner/plaintiff himself has referred to loans having been given to the respondent/defendant by way of bank transfer.

When the respondent/defendant had challenged the claim of the petitioner/plaintiff that he had acted as legal advisor to them and, therefore, the invoice raised was for a fee, this fact too would have to be proved.

In application for leave to defend, the respondent/defendant it was averred that the petitioner/plaintiff had claimed to have been providing legal assistance to the respondent/defendant since the year 2000.

With respect to the submissions made by the counsel for the petitioner/plaintiff, on taking cognizance of an offence by the MM under Section 138 of the N.I. Act automatically a decree against the respondent/defendant should follow, cannot be accepted, as cognizance leads to trial and the accused can also get acquitted.

Secondly, on the one hand, the petitioner/plaintiff claims that the cheques were towards loans which were separate transactions and on the other hand, wants this Court to draw conclusions on that basis, that the signatures on the cheques were admitted and the MM had taken cognizance of the case to decree this suit.

Bench stated that in light of the above submissions, it is indeed a matter of trial as to what was the liability of the respondent/defendant towards the petitioner/plaintiff and towards what transaction or service rendered by the petitioner/plaintiff, that is, as a lender or as a legal advisor, would he be entitled to the suit amount.

High Court held that the Trial Court was right in observing that the defence taken was not moonshine and disclosed triable issues which required inquiry. Leave to defend had to be granted in the light of these varying stands taken by the petitioner/plaintiff in different proceedings.

in the light of the previous orders of this Court and the deposit of the FDR for a sum of Rs.1.5 crores with the Registry of this Court, the leave to defend granted to the respondent/defendant is not unconditional and does not work to the disadvantage of the petitioner/plaintiff.

In view of the above, petition was dismissed. [Sarvesh Bisaria v. Anand Nirog Dham Hospital (P) Ltd., 2021 SCC OnLine Del 3859, decided on 30-7-2021]


Advocates before the Court:

For the Petitioner; Vivek Kumar Tandon, Advocate

For the Respondent: Sanchit Garga, Advocate

Case BriefsHigh Courts

Madras High Court: The Division Bench of P.N. Prakash and R. Pongiappan, JJ., addressed a contempt petition filed under Section 10 of the Contempt of Courts Act.

Petitioner aged 87 years old was blessed with 5 children. He was in service when his children were young and was allotted a plot by the Tamil Nadu Housing Board, wherein he built a two-storeyed house. After his retirement, he started living peacefully with his wife and 4th son viz. Laxmi Rajah on the first floor. Apart from this he also owned a few more properties in and around Chennai.

After the death of his wife, petitioners’ children started demanding their shares in the properties and two of his sons Vijay and Suraj took possession of the ground floor and after a year started giving him trouble.

Due to the fear of being dispossessed from the house, a settlement deed in favour of the 4th son was executed.

On being infuriated with the above stated, the 4th son’s wife assaulted the petitioner and the other three daughter-in-law lodged a police complaint against the petitioner based on which an enquiry was conducted and the case as closeld as the same was a ‘civil dispute’.

The disgruntled sons gave a complaint of cheating and fraudulent transaction against their father. Again, the same was closed as “family quarrel”.

Vijay and Suraj filed a suit before the VII Additional City Civil Court for partition alleging that their father the petitioner did not have any means to purchase the Anna Nagar house property and it was bought with the funds of their grandfather and hence, they have a share in it.

The above mentioned two sons also assaulted their father, after which the petitioner sought protection under the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Police filed an FIR against the two sons for the offences under Sections 294(b), 352 and 506(I) Penal Code, 1860 and Section 24 of the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Two sons pleaded to Murthi at Metropolitan Magistrate’s house to withdraw the complaint and they will vacate the premises and show the bonafide they filed a written memo of undertaking before the Metropolitan Magistrate.

Reason for filing the present petition

After earning freedom, the two sons turned turtle, reneged from their undertaking and refused to vacate the premises and therefore, Murthi/ Petitioner was before this Court with the instant contempt petition.

Analysis, Law and Decision

Whether the undertaking given by Vijay and Suraj before the Metropolitan Magistrate was under coercion when they were in police custody or they gave it voluntarily?

Bench noted that when Vijay and Suraj’s counsel submitted before the Court that if some more time would be granted, they would vacate the house, the duo refused to toe their counsel’s line as well. Mainly they stuck on to the issue that their father did not give any share to them in his property.

Order passed by the V MM stated that the advocate for the accused pleaded to the V MM not to remand the accused and only thereafter, Murthi came into the picture, resulting in the duo filing a memo of undertaking to vacate the house, followed by Murthi filing a memo accepting the undertaking given by his sons.

Court expressed that the accused were represented by an advocate at the time of remand, and he would not have been so guile to make his clients file a memo of undertaking had the V MM been disinclined to remand them in judicial custody.

In view of the above, it is limpid that the alleged contemnors had filed an undertaking into the Court, which they had no intention of honouring, and had successfully extricated themselves from remand proceedings and their contention that the undertaking was given by them under coercion defies credulity.

Power of High Court to punish for Contempt of Courts subordinate to it, is recognized in Section 10 of the Contempt of Courts Act and it is well settled that a wilful breach of an undertaking given to the Court would constitute civil contempt.

Therefore, the subsequent act of deliberately reneging from the terms of the undertaking by the alleged contemnors constitutes a serious interference in the administration of justice, and the respondents were held to be guilty of Section 2(b) of the Contempt of Courts Act, 1971.

The contempt petition was allowed.[P.S. Murthi v. P.S. Vijay, 2021 SCC OnLine Mad 2052, decided on 04-06-2021]


Advocates before the Court:

For petitioner:  Mr. T. Arun Kumar for M/s. Tamizh Law Firm

For respondents: Mr. V. Krishnamoorthy

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., directed that the statements under Section 164 of the Code of criminal Procedure, 1973 of children in need of care and protection should be recorded by the Metropolitan Magistrate over video conferencing or by visiting the observation homes.

Petitioner has established a Child Care Institution under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Reason for filing the present petition was that, out of a rescue operation in July, 2020 ten minors who were working as child labour were rescued and brought to the Mukti Ashram.

Contention of the petitioner is that the children were compelled to leave Mukti Ashram and physically attend the Court of the Metropolitan Magistrate for recording of their statements under Section 164 of the Code of Criminal Procedure, 1973 and for giving samples for COVID-19 testing.

Respondents should lay down procedures for recording of the childrens’ statements and their medical testing, which does not require them to leave the institution or at atleast to attend at crowded public places.

Bench stated that in the interest of the children who require care and protection it should be necessitated that their exposure t crowded environments be avoided in the prevailing circumstances of the COVID-19 pandemic. As far as possible, they shouldn’t be required to leave the premises of the Child Care Institution in which they are housed.

Court directed as follows:

  • Statements under Section 164 of the Code of Criminal Procedure, 1973 of children in need of care and protection can be recorded by the Metropolitan Magistrate over video conferencing or if the Metropolitan Magistrate deems it necessary, he/ she can visit the concerned observation homes/Child Care Institutions where such children are housed, for recording the statement in person.
  • Proceedings before the Child Welfare Committees and other bodies where the children are required to participate, are already being conducted by video-conference. We direct that this process should be continued, and the requirement of taking the child out of the home/ Child Care Institution should be avoided as far as possible.
  • Covid-19 tests will also be carried out by the State authorities for the children in need of care and protection who are staying at different homes/Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015. The sample shall be collected for this purpose either at the home/Child Care Institution or at the office of the Sub-Divisional Magistrate of the area. The authorities will ensure that all precautions for the welfare of the child are taken, and that the sample is expeditiously collected, so that the child can return to the home/ institution.

In view of the above observations, petition was dismissed. [Bachpan Bachao Andolan v. GNCTD, WP(C) No. 4361 of 2020, decided on 28-07-2020]

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., dismissed a petition filed against the order of the Sessions Court whereby it had dismissed the review petition filed by the petitioners against the order of the Metropolitan Magistrate taking cognizance of offences under Section 138 and Section 141 of the Negotiable Instruments Act, 1881, against the petitioner.

The respondent company instituted a complaint under Section 138 read with Section 142 against the petitioners in respect of non-payment against the four dishonoured cheques for the total amount of Rs 16 crores issued on behalf of and/or by petitioner company in favour of the respondent’s company. The Metropolitan Magistrate had passed an order taking cognizance. Aggrieved, the petitioners filed a revision petition before the Sessions Court, which was dismissed. The petitioners now invoked the jurisdiction of the High Court under Sections 482 CrPC (inherent powers).

It was contended by the petitioners that the demand notice was defective as the demand had been made over and above the cheque amount and the legal demand notice was vague and ambiguous. Rejecting this point, the High Court held that the notice should be read as a whole. The perusal of the notice clearly set out the details of the cheque which had been dishonoured, so it could not be said that the demand made was ambiguous or in any way confusing the petitioners as there was no denial that the cheque in question were not issued or that they were not dishonoured for insufficient funds.

Besides the above point, a procedural issue arose as to whether the petitioners having availed of the remedy of revision should be allowed to take recourse to Section 482 CrPC as a substitute for virtually initiating a second revisional challenge or scrutiny which is clearly barred under Section 397(3) CrPC.

Perusing various provisions of the Negotiable Instruments Act, the High Court observed: “The provisions of Sections 142 to 147 lay down a Special Code for the trial of offences under Chapter 17 of the NI Act.” Reliance was placed on the Supreme Court decision in Mandvi Coop. Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83, which held that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of CrPC, the main body of adjective law for criminal trials.

In the instant case, Court did not find any material which could be stated to be of sterling and impeccable quality warranting invocation of the jurisdiction of the High Court under Section 482 CrPC at this stage. More so, the defence as raised by the petitioners requires evidence, which could not be appreciated, evaluated or adjudged in the proceedings under Section 482. The petitioners, therefore, could not be allowed to take recourse to Section 482 as a substitute for initiating a second revision petition when there was nothing to show that there is a serious miscarriage of justice or abuse of the process of law.

Accordingly, the court found no infirmity in the order passed by the Session Judge and, therefore, dismissed the petition. [Tathagat Exports (P) Ltd. v. PEC Ltd., 2020 SCC OnLine Del 405, decided on 20-01-2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed an appeal filed by the Union of India against the order of the trial court whereby the respondents were acquitted of offences under various provisions of the Customs Act, 1962.

The respondents were accused of illegal dealing in foreign marked gold biscuits. Pursuant to information received, the Directorate of Revenue Intelligence affected a raid and search of premises where they found the respondents and recovered 24 marked gold biscuits along with large quantities of foreign and Indian currency. The respondents were brought to the DRI Office. Summons were issued to them under Section 108 of the Customs Act and their statements were recorded. After completion of the investigation, a complaint was filed against the respondents. Before the trial court, the respondents took the stand they were poor villagers who came to Mumbai in search of work. While searching for a job, somebody gave them the address of the said premises, and they had reached there just a couple of minutes prior to the raiding party. At the conclusion of the trial, the respondents were acquitted by the trial court, Aggrieved thereby, the Union of India filed the instant appeal.

The High Court noted that the respondents had, at the first opportunity, filed an application before the Metropolitan Magistrate for retracting their statements recorded under Section 108. The prosecution asserted that the statements of the respondents were voluntarily and correctly recorded without any force or inducement. However, the High Court found that there was no independent corroboration by any witness of the Section 108 statements of the respondents.

Discussing whether the statement of respondents was to corroborated, K.R. Shriram, J. observed, “If I have to simply accept the statement recorded under Section 108 as gospel truth and without any corroboration, I ask myself another question, as to why should anyone then go through a trial. The moment the Customs authorities recorded the statement under section 108, in which the accused has confessed about his involvement in carrying contraband gold, the accused could be straightaway sent to jail without the trial court having recorded any evidence or conducting a trial.”

The Court reiterated that in absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon.

Furthermore, it was also noted that the Judgment of acquittal was passed in 2001 and more than 19 years have passed since. In such view of the matter, the High Court held that the order of acquittal passed by the trial court did not warrant interference. Accordingly, the appeal filed by the Union of India was dismissed. [Union of India v. Kisan Ratan Singh, 2020 SCC OnLine Bom 39, decided on 07-01-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J. allowed a criminal revision petition filed by the State assailing the Judgment passed by Principal Magistrate whereby a juvenile was acquitted, holding the said order to be Coram non-judis.

The case was instituted on 28-09-2010 when the Juvenile Justice Act, 2000 was in operation; Section 4(2) whereof states that “A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, and two social workers of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973, on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class and the Magistrate on the Board shall be designated as the Principal Magistrate.

Further, Section 5(3) of the JJ Act states “A Board may act notwithstanding the absence of any member of the Board, and no order made by the Board shall be invalid by reason only of the absence of any member during any stage of proceedings: Provided that there shall be at least two members including the principal Magistrate present at the time of final disposal of the case.”

The Court noted that while the JJ Act was amended in the year 2015, no changes were made with regard to the composition mentioned in Section 4(2) of the JJ Act, 2000. Reliance was placed on the judgment in Hasham Abbas Sayyad v. Usman Abbas Sayyad, (2007) 2 SCC 355, where it was held that an order passed by a magistrate beyond his jurisdiction would be considered void ab initio. It was opined that where a Court takes upon itself to exercise a jurisdiction it has not possessed its decision amounts to nothing”.

Since in the present case, the impugned order was passed by the Magistrate sitting singly, and without fulfilling the criteria of composition required for functioning of the Juvenile Justice Board (JJ Board), therefore the impugned order was set aside and the case was remanded to JJ Board for deciding the case afresh in accordance with law after hearing both the parties.[State of Himachal Pradesh v. Happy, 2019 SCC OnLine HP 700, decided on 28-05-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Mukta Gupta, J. dismissed a writ petition filed against the order-cum-inquiry report of Additional Chief Metropolitan Magistrate whereby he recommended extradition of the petitioner to the Kingdom of Thailand.

The petitioner was alleged to have murdered an American national in Bangkok, Thailand in 2012. The Thai Government made him the prime suspect. Thereafter, the petitioner surrendered before the Mumbai police from where he was transmitted to Delhi.

The petitioner, represented by Dr Harsh Surana and Deepali S. Surana, Advocates, challenged the inquiry report on two grounds– that the documents received from Thai Government for enquiry were not properly authenticated; and the original documents were not filed before the Court.

On perusing Section 7, 10 and 17 of the Extradition Act, 1962, the Court was of the opinion that there was no occasion to interfere in the matter. It was found that the documents were properly authenticated as per Section 10(2). It was observed that under Section 7, the scope of inquiry by Metropolitan Magistrate is limited to satisfy himself for the presence of a prima facie case or reasonable ground to believe that the fugitive criminal has committed an extraditable offence. On further contentions by the petitioner, it was held that on his extradition, the petitioner will face a full-fledged trial where all the facts alleged by him will be brought to the notice of the competent court. In such view of the matter, the petition was dismissed as without merits. [Ritesh Narpatraj Sanghvi v. Union of India, 2019 SCC OnLine Del 6391, dated 07-01-2019]