& Management Of Ashok Hotel (Itdc) vs Their Workmen & Anr. on 12 November, 2024 By indiankanoon.org Published On :: YASHWANT VARMA, J. 1. This Letters Patent Appeal1 is directed against the judgment rendered by the learned Single Judge on 19 February 2013 in terms of which an Award rendered by the Industrial Tribunal2 has come to be upheld. In terms of the Award dated 05 October 2005, the petitioner- appellant was directed to frame a policy of regularisation in respect of the respondent workmen. Both the Tribunal as well as the learned LPA Tribunal Single Judge have essentially held against the appellant on the ground that the engagement of the respondent-workmen through a contractor was merely a ruse to overcome the obligations which would have stood attached in case it were to be recognized to be the principal employer. Full Article
& Aparna Ashram Society & Anr. vs Mr.Mohan Jha & Ors. on 8 November, 2024 By indiankanoon.org Published On :: CHANDRA DHARI SINGH, J. 1. The instant regular first appeal has been filed by the appellants under Section 96 of the Code of Civil Procedure, 1908 (hereinafter as 'CPC') seeking the following reliefs: Signature Not Verified RFA 9/2022 Page 1 of 60 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:12.11.2024 18:37:54 "(a) call, summon and peruse the records of the Ld. Trial Court of Sh. Jay Thareja, Ld. ADJ-07, South-East District, Saket Courts, Delhi in Civil Suit No.7447/2016 titled as "Apama Ashram Vs. Mohan Jha & Ors. "; Full Article
& Vijay Kumar Shukla vs State Nct Of Delhi & Anr. on 11 November, 2024 By indiankanoon.org Published On :: ANISH DAYAL, J. "Every saint has a past, every sinner has a future" - Justice V.R Krishna Iyer. These words resonate deeply in the assessment by this Court of the plea of premature release after 26 years of incarceration. Signature Not Verified Digitally Signed By:MANISH KUMAR W.P.(CRL) 1485/2024 Page 1 of 58 Signing Date:12.11.2024 12:03:39 1. The petitioner seeks directions for setting aside the Minutes of Meeting of the Sentence Review Board ("SRB") held on 30th June 2023 rejecting the premature release of the petitioner and order dated 21 st November 2023 by which the Minutes of SRB were approved by the Hon'ble Lieutenant Governor, Delhi; ("LG"). Petitioner, therefore, seeks directions for premature release in FIR No.48/2001, PS Rajender Nagar for offences under Sections 302/186/353/34 of the Indian Penal Code, 1860 ('IPC'), Sections 25/27 of the Arms Act, 1959 and Section 68 of the Excise Act, 2009. Additionally, the petitioner prays that this Court frames guidelines to ensure that all decisions taken by the SRB are in consonance with the Delhi Prisons Rules, 2018 ("DPR"). Full Article
& News Item Titled "Chunk Of India,S ... vs Coram: Hon'Ble Mr. Justice Prakash ... on 11 November, 2024 By indiankanoon.org Published On :: 1. In this original application, registered suo motu, the Tribunal is considering the issue of delay in filing the reports by the State Expert Committees and its effect on the unclassed forests. 2. By order dated 31.07.2024, 38 respondents were impleaded and notices have been served upon them. 3. Replies on behalf of only UT of Ladakh and State of Andhra Pradesh have been received. 4. The previous order also indicates that there are 7 States, i.e., Goa, Haryana, Jammu & Kashmir, Ladakh, Lakshadweep, Tamil Nadu and West Bengal, who do not appear to have constituted the Expert Committees till now. 5. Learned Counsel appearing for the MoEF&CC submits that the Ministry is in touch with the authorities of all the States and the last meeting was held on 03.10.2024 and that after collecting the relevant information, the MoEF&CC will file the reply within four weeks. Full Article
& News Item Titled "Forest Land Five Times ... vs Item No. 08 Court No on 11 November, 2024 By indiankanoon.org Published On :: 1. In this original application, registered suo motu, the issue under consideration relates to the large-scale encroachment on the forest land across the country. 2. The Tribunal by the order dated 19.04.2024 had required the States/Union Territories(UTs) to furnish the detailed information in the format provided in that order and also to supply a copy thereof to Counsel for the Respondent No.1, MoEF&CC, who was directed to compile the information in a separate table which was also provided in that order. 3. The MoEF&CC has filed the interim affidavit dated 30.07.2024 disclosing that the reply was received by the MoEF&CC by 23 States/UTs out of which, 16 States/UTs had provided the data in the prescribed format. Full Article
& News Item Titled "Dehradun : ... vs . Ankita Sinha & Ors." Reported In 2021 on 2 September, 2024 By indiankanoon.org Published On :: 1. This original application is registered suo motu on the basis of the news item titled "दे हरादन ू : उ राखंड के 104 वग कलोमीटर जंगल पर क ज़ा... सैकड़ो पेड़ काटे , वन वभाग क भू मका सवालो म" appearing in 'Amar Ujala' dated 22.08.2024. 2. The news item relates to the encroachment of forests in Uttarakhand. As per the article, a total of 104.54 square kilometres of forest in 39 forest divisions of the State is occupied by encroachers. The news item questions the inaction by the Forest Department as the encroachment took place gradually, yet no action has been taken by the authorities. The article mentions that 11 thousand hectares of forest land in the State were encroached and the Forest Department did not even know about it and upon gaining knowledge, only 11.5 hectares of forest land were freed from encroachment. Furthermore, the Uttarakhand Forest Statistics Book published in 2017-2018 reported that 9,506.2249 hectares of forest land were encroached upon. However, under the CM's instructions, a recent campaign initiated by the Forest Department last year reported an increased figure of 11,814.47 hectares of encroached forest land. This raises questions about whether the increase occurred over the past three years or if it reflects earlier encroachments that were previously unreported. Full Article
& M/S.Sree Gokulam Chit & Finance Co.(P) vs P.R.Balakrishnan on 8 November, 2024 By indiankanoon.org Published On :: 1 .R.BALAKRISHNAN, S/O.P.N.RAMAKRISHNAN RAO P PARTNER, M/S.WOODLANDS JEWELLERS, WOODLAND JUNCTION, M.G.ROAD, ERNAKULAM,, KOCHI-16. 2 /S.WOODLANDS JEWELLERS, M KOCHI-16. 3 TATE OF KERALA, REPRESENTED BY S THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 1 & R2 BY ADVS. R SRI.JOHN BRITTO SRI.C.A.RAJEEV R3 BY PUBLIC PROSECUTOR SMT.SEENA C. THIS CRIMINAL APPEALHAVING BEEN FINALLY HEARD ON 30.10.2024, THE COURT ON 08.11.2024 DELIVERED THE FOLLOWING: CRL.A NO. 1029 OF 2008 2 2024:KER:82742 "CR" J U D G M E N T The complainant in CC No.238 of 2002 on the file of Additional Chief Judicial Magistrate, Ernakulam, filed this appeal challenging acquittal of the accused, under Section 138 of the Negotiable Instruments Act (hereinafter referred as 'the NI Act'), as per judgment dated 31.05.2007. 2. The complainant, M/s.Sree Gokulam Chit & Finance Company,isaPrivateLimitedcompanyhavingitsregistered office at Chennai and a branch office at MG Road, Ernakulam. The complainant is represented by its power of attorney holder, who is the Assistant Manager of that company.Heisempoweredtoinstitutethecomplaintandto give evidence. The 2nd accused is M/s.Woodlands Jewellers and the1staccusedisitspartner.Rs.2,13,000/-wasdueto the complainant, from the accused, towards future instalments of kuri transactions, whichthe2ndaccusedhad subscribed with the complainant-company. Towards dischargeofthatdebt,the1staccusedissuedExt.P2cheque dated 14.12.2001, assuring that, it would be encashed on CRL.A NO. 1029 OF 2008 3 2024:KER:82742 presentation before the Bank. The complainant presented that cheque for collection but it was dishonoured for the reason, 'A/c transferred to suit file. No Balance.', as per Ext.P3 memo. Complainant sent Ext.P5 registered lawyer notice to the accused, and inspiteofreceiptofnotice,they did not repay that amount, though a reply was sent with untenable contentions. Hence the complaint. 3. After taking cognizance and on appearance of the accused before the trial court, particulars of offence were read over and explained, to which, they pleaded not guilty andclaimedtobetried.Thereupon,PW1wasexaminedand Exts.P1toP10andP10(a)weremarkedfromthesideofthe complainant. On closure of complainant's evidence, the accused were questioned under Section 313 of Cr.P.C. They denied all the incriminating circumstances brought out in evidence and according to them, they subscribed chitty conducted by the complainant, which was terminated on 12.11.1998. They paid the entire amount due, and thereafter their passbook was closed. Ext.P2 cheque was CRL.A NO. 1029 OF 2008 4 2024:KER:82742 given by the accused, as a blank one, only as a security, when he bid the chitty. After closing the chitty,theaccused demanded back the blank cheque given as security, but it was not returned, saying that it was kept intheheadoffice at Madras. No defence evidence was adduced. 4.Onanalysingthefactsandevidence,andonhearing the rival contentions from either side, the trial court acquitted the accused, finding that the complaint was not properly instituted, as PW1-Assistant Manager was not properly authorised to filethecomplaintortogiveevidence on behalf of the company. Moreover, the complainant failed to prove that, Ext.P2 cheque was issued towards discharge of a legally enforceable debt. Aggrieved by the acquittal of the accused, the complainant has preferred this appeal. 5. Heard learned counsel for theappellantandlearned counsel for the respondents. 6. Learned counsel for the appellant would contend that, since the complainant is a Private Limited company, which is an incorporeal body, only an employee or CRL.A NO. 1029 OF 2008 5 2024:KER:82742 representativeofthecompanycanpreferthecomplaint.The company becomes a de jure complainant and its employee or other representative representing the company in the criminalproceedingsbecomesthedefactocomplainant.Ina complaint, with regard to dishonour of a cheque issued in favour of a company, for the purpose of Section 142 of the NI Act, the company will be the complainant, and for the purpose of Section 200 of the Criminal Procedure Code, its employee,whorepresentsthecompany,willbethedefacto complainant. A company can be represented by an employee, or even by a non-employee authorised and empowered, to represent the company by a resolution or a power of attorney. 7. According to the appellant, Ext.P8 extract of the resolution empowered PW1-Sri.A.T.K.Ajayan, who was the Assistant Manager ofthecompany,tofilethecomplaintand to give evidence. Ext.P8 is the extract from the minutes,of the proceedings of the Board of Directors meeting, held on 14.09.2000, at its corporate office at Chennai, which CRL.A NO. 1029 OF 2008 6 2024:KER:82742 authorisedtheAssistantManagerSri.A.T.K.Ajayan,todothe following acts: '( 1) Toinstitute,commence,prosecute,carryonor defend any suit or legal proceeding, (2)Tosignandverifyallplaints,writtenstatements and other pleadings, applications, affidavits, petitions or documents and produce them before any Court, (3) To appoint, engage and instruct any solicitor, Advocate or Advocates to act and plead and other wise conduct the case on behalf of the Company and to sign any Vakalathnama or other authority in this regard, (4) To give evidence on behalf of the Company in any Court of law, and (5) To do all other lawful acts,deedsandthingsin connectionwithfilingofanysuitandconducting anylegalproceedingsinanycourtoflawandto withdraw the case on behalf of the Company.' CRL.A NO. 1029 OF 2008 7 2024:KER:82742 8. Learned counsel for respondents 1 and 2 would contendthat,Ext.P8extractoftheminutesisnotadmissible in evidence and the minutes has to beprovedbyproducing theoriginal.HewouldrelyonadecisionoftheHighCourtof Judicature at Bombay in Ashish C. Shah v. M/s. Sheth DevelopersPvt.Ltd.&Othersreportedin[CDJ2011BHC 339:2011 KHC 6506], to say that, Section 194 of the Companies Act provides that, the minutes of meetings kept in accordance with the provisions of Section 193, shall be evidence of the proceedings recorded therein. No provision intheCompaniesActwasbroughttothenoticeofthatcourt which provides that, certifiedcopyorextractoftheminutes would be admissible in evidence, without proof of the original. Section 65(f) of the Evidence Act provides that, secondary evidence may be given, of the existence, conditionandcontentsofthedocument,whentheoriginalis the document, of which a certified copy is permitted bythe Evidence Act or by any other law in force in India, to be given in evidence. He would rely on another decisionofthe CRL.A NO. 1029 OF 2008 8 2024:KER:82742 Delhi High Court in Escorts Ltd. v.SaiAutosandOthers [1991 Company Cases Volume 72 Page 483] to say that, copy of resolution was not enough and the original of the minutes book, containing the resolution reliedon,hastobe brought to the court. 9. Section 119 of the Companies Act, 2013 which correspondstoSection196oftheCompaniesAct,1956says that,thebookscontainingtheminutesoftheproceedingsof any generalmeetingofacompanyorofaresolutionpassed by postal ballot shall be kept at the registered office of the company,anditshallbeopenforinspectionbyanymember during business hours and if any member make a request, for a copy of the minutes,itshallbefurnishedwithinseven days, onpaymentofprescribedfees.So,Section119ofthe Companies Act provides for copy of the minutes, and moreover, learned counsel for the appellant would saythat, copy of every resolution shall be sent to the Registrar for recording the same within 30 days of passing the same. Moreover, as per Section 54 of the Companies Act, 1956, a CRL.A NO. 1029 OF 2008 9 2024:KER:82742 document which requires authentication by a company may be signed by adirector,themanager,thesecretaryorother authorisedofficerofthecompany,andneednotbeunderits common seal. So, accordingtotheappellant,Ext.P8extract oftheminutes,whichcontainstheresolutionauthorisingthe Assistant Manager to file criminal or civil cases or to give evidenceetc.,signedbythedirectorofSreeGokulamChit& Finance Co.(P)Ltd.,wassufficientauthorityforPW1,tofile the complaint and to give evidence, on behalf of the company. 10. Learned counsel for the respondents would point outthat,Ext.P8wasnotproducedalongwiththecomplaint, and it was produced subsequently after questioning the accusedunderSection313ofCr.P.C.Relyingonthedecision M. M. T. C. Ltd. v. Medchil Chemicals And Pharma (P) Ltd. [2002 KHC 241], learned counsel for the appellant contended that, even if there was no authority initially, still thecompanycanrectifythatdefect,atanystage.Inpara12 of that judgment, we read thus: CRL.A NO. 1029 OF 2008 10 2024:KER:82742 "It has been held that if a complaint is madeinthe name of an incorporeal person (like a company or corporation) it is necessary that a natural person representssuchjuristicpersoninthecourt.Itisheld that the court looks upon the natural person to be the complainant for all practical purposes. It is held that when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as defactocomplainantto represent the former in court proceedings. It has further been held thatnoMagistrateshallinsistthat theparticularperson,whosestatementwastakenon oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the de jure complainant companytoseekpermissionofthe court for sending any other person to represent the company in the court. Thus, even presuming, that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The complaintscouldthusnothavebeenquashedonthis ground." 11. In the decision, Bhupesh Rathod v. Dayashankar Prasad Chaurasia and Another[2 021 (6) CRL.A NO. 1029 OF 2008 11 2024:KER:82742 KHC 368], Hon'ble Apex Court held that, even if there was no authority initially, the company can at any stage rectify that defect by sending a competent person. In that case, copy of the board resolution was filed along with the complaint. An affidavit was brought on record by the company, affirming the factum of authorisation in favour of the Managing Director. Hon'ble Apex Court accepted the copy of board resolution, to find thattheManagingDirector was authorised to file complaint in the Court and to attend all such affairs which maybeneededintheprocessoflegal actions. Paragraphs 23 and 24 of that judgment read thus: "2 3. It is also relevant to note that a copy of the Board Resolutionwasfiledalongwiththecomplaint.Anaffidavit had been brought on record in the Trial Court by the Company, affirming to the factum of authorisation in favouroftheManagingDirector.AManageroraManaging Directorordinarilybytheverynomenclaturecanbetaken tobethepersonin-chargeoftheaffairsCompanyforits day - to - daymanagementandwithintheactivitywould certainlybecallingtheactofapproachingtheCourteither under civil law or criminal law for setting the trial in motion (Credential Finance Ltd. v. State of Maharashtra, 1998(3)MahL J805).Itwouldbetootechnicalaviewto take to defeat the complaint merely because the bodyof CRL.A NO. 1029 OF 2008 12 2024:KER:82742 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 ManagingDirector.Onlytheexistenceof authorisation could be verified. 24.Whileweturntotheauthorisationinthepresentcase, itwasacopyand,thus,doesnothavetobesignedbythe BoardMembers,asthatwouldformapartoftheminutes of the Board meeting and not a true copy of the authorisation. We also feel that it has been wrongly concludedthattheManagingDirectorwasnotauthorised. If we peruse the authorisation in the form of a certified copyoftheResolution,itstatesthatlegalactionhastobe taken against the respondent for dishonour of cheques issued by him to discharge his liabilitiestotheCompany. To this effect, Mr. Bhupesh Rathod / Sashikant Ganekar were authorised to appoint advocates, issue notices through advocate, file complaint, verifications on oath, appointConstituentattorneytofilecomplaintintheCourt and attend all such affairs which may be needed in the process of legal actions. What more could be said?" 12. Obviously Hon'bleApexCourtacceptedcopyofthe resolutiontofindthefactumofauthorisationinfavourofthe Managing Director. 13.Inthecaseonhand,PW1-AssistantManagerofthe complainant-companyfiledthecomplaintandgaveevidence CRL.A NO. 1029 OF 2008 13 2024:KER:82742 on behalf of the company. Ext.P8 extract of the minutes shows that, the board of directors authorised him to do so. Thefactthatonlyextractoftheminutesbookwasproduced, without producing the original, or that Ext.P8 wasproduced at a belated stage, etc., will not take away that right from him. So, he could have filed the complaint and given evidence also on behalf of the company, on the strength of the resolution by the boardofdirectors,anextractofwhich was produced as Ext.P8. 14.Learnedcounselfortherespondentswouldcontend that, Ext.P9 power of attorney was not executed or authenticated by theNotaryPublicandso,itcouldnothave been accepted to draw power for PW1, tofilethecomplaint or to give evidence. According to him, the two ingredients contained in Section 85 of the Evidence Act viz. execution before the Notary Public and the authentication by the Notary Public are very essential. The words 'executed before', and 'authenticated by', are the two conditionstobe satisfied in order to attract the presumption under Section CRL.A NO. 1029 OF 2008 14 2024:KER:82742 85 of the Evidence Act.HewouldrelyonthedecisionBank of India v. M/s. Allibhoy Mohammed and Others reported in [AIR 2008 BOMBAY 81], to support his argument.Inparagraph 18 of that judgment, we read thus: "18. Let me turn to the Legal Provisions; namely, Section 85 of the Evidence Act which lays down that the Court shall presume due execution and authentication of power of attorney when executed before, and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Counsel or it's Vice Counsel or representative of theCentralGovernment, etc. This presumption is available in favour of the originalPowerofAttorneyholderprovidedmandateof Section 85 is duly followed." 15. In the case on hand, though the original power of attorneyisproducedandmarkedasExt.P9,itdoesnotshow that it was executed by the complainant in presence of the Notary Public, and there is no authentication by the Notary Public, that it was executed before her. So, there is some forceintheargumentputforwardbylearnedcounselforthe respondents, that Ext.P9 power of attorney cannot be accepted,forwantofproperexecutionandauthenticationas CRL.A NO. 1029 OF 2008 15 2024:KER:82742 envisaged under Section 85 of the Evidence Act. 16. Learned counsel for the appellant would submit that,evenifthepowerofattorneyisignored,thenalso,the complaint is filed by an officer of the company and he was authorised as per board resolution dated 14.09.2000, the extract of which was marked as Ext.P8. So, this Court is of the view that, though Ext.P9 power of attorney was not liable to be accepted, being the officer of the company, authorised by board resolution dated 14.09.2000, PW1 was empowered to file the complaint and to give evidence. 17.Learnedcounselfortheappellantwouldsaythat,if the accused was disputing the authority of the complainant tofilethecomplaintortogiveevidence,itwasopenforhim to dispute andestablishthesameduringthecourseoftrial. Hon'ble Apex Court in TRL Krosaki Refractories Ltd. (M/s.) v. M/s. SMS Asia Pvt. Ltd. and Another [2022 (2) KHC 157:2022 (1) KLT OnLine 1043 (SC)] made that position clear, by holding that, when thecomplainant/payee is a company, an authorized employee can represent the CRL.A NO. 1029 OF 2008 16 2024:KER:82742 company. Such averment and prima facie material is sufficient for the learned Magistrate to take cognizance and to issue process. If at all there is any serious dispute with regard to the person prosecuting the complaint not being authorized, or if it is to bedemonstratedthatapersonwho filed the complaint has noknowledgeofthetransactionand assuchthatpersoncouldnothaveinstitutedandprosecuted the complaint, it would be open for the accused to dispute thepositionandestablishthesameduringthecourseofthe trial. 18. Though the respondents were disputing the authority of PW1, vide Ext.P8 extract of the resolution as wellasExt.P9powerofattorney,theydidnottakeanysteps to establish that position, during trial.So,thefindingofthe trialcourt,thatPW1wasnotauthorizedtofilethecomplaint and to give evidence on the basis of Ext.P8 extract of the resolution, is liable to be set aside. 19.Comingtothefactsofthecase,learnedcounselfor theappellantwouldsubmitthat,therespondentssubscribed CRL.A NO. 1029 OF 2008 17 2024:KER:82742 seven kuries of Rs.5,00,000/- each, with the appellant company, andtheyauctionedthatkurion14.02.1997.They defaulted payment of future instalments, and towards discharge of that liability, the 1st respondent issued Ext.P2 cheque dated 14.12.2001 for an amount of Rs.2,13,000/-. When that cheque was presented before Bank, it was returned dishonoured for the reason 'A/c transferred to suit file. No balance.' The respondents are not disputing the signatureinExt.P2chequeortheissuanceofthatchequeto the appellant. All statutory formalities to bring home an offence punishable under Section 138 of the NI Act was complied with. Moreover, the presumptions available under Sections 118 and 139 of the NI Act will come to the aid of the appellant to show that, Ext.P2 cheque was issued towards discharge of a legally enforceable debt. So, according totheappellant,learnedtrialcourtwentwrongin acquitting the accused. 20. The respondents would contend that, when they auctioned the kuri with the appellant, as a security for the CRL.A NO. 1029 OF 2008 18 2024:KER:82742 balance instalments, Ext.P2 cheque was given as a blank signed cheque, and even after they paid the future instalments fully, and closed the kuri, the blank cheque entrustedwiththeappellantwasnotreturned. Onlytosee, whether they could extract some more money from the respondents, they filed a false complaint, misusing that blank cheque. 21.RelyingonthedecisionoftheHon'bleApexCourtin Bir Singh v. Mukesh Kumar[(2019) 4 SCC 197], learned counsel for the appellant would argue that, even a blank cheque leaf, voluntary signed and handed over by the accused, which is towards some payment, would attract presumptionunderSection139oftheNIAct,intheabsence of any cogent evidence to show that the cheque was not issued in discharge of a debt. Paragraphs 33 to 36 of that judgment read thus: "33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payeeremainsliableunlessheadducesevidencetorebut CRL.A NO. 1029 OF 2008 19 2024:KER:82742 the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34.Ifasignedblankchequeisvoluntarilypresentedtoa payee,towardssomepayment,thepayeemayfillupthe amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accusedtoprovethatthechequewasnotindischargeof a debt or liability by adducing evidence. 35.Itisnotthecaseoftherespondent-accusedthathe either signed the cheque or parted with it under any threat or coercion. Nor isitthecaseoftherespondent- accused thattheunfilledsignedchequehadbeenstolen. The existence of a fiduciary relationship between the payeeofachequeanditsdrawer,wouldnotdisentitlethe payee to the benefit of the presumption under Section 139oftheNegotiableInstrumentsAct,intheabsenceof evidence of exercise of undue influence or coercion.The second question is also answered in the negative. 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the NegotiableInstrumentsAct,intheabsenceofany cogent evidence to showthatthechequewasnotissued in discharge of a debt." CRL.A NO. 1029 OF 2008 20 2024:KER:82742 22. The respondents are not disputing issuance of Ext.P2chequetotheappellant,thoughaccordingtothem,it wasissuedasablanksignedcheque.Theyarenotdisputing the fact that they auctioned the kuri which they subscribed with the appellant and future instalments were to be paid, evenafterauctioningthekuri.Obviously,Ext.P2chequewas issuednotunderanythreatorcoercion,andevenaccording totherespondents,itwasissuedasasecurityforthefuture instalmentstobepaidinthekuri,whichtheyhadauctioned. In Moideen v. Johny [2006 KHC 1055], this Court held that, even if a blank cheque was issued as a security, the person in possession of the blank cheque, can enter the amount of the liability and present it to the bank. When a blank cheque is issued by one to another, it gives an authority on the person, to whom itisissued,tofillitupat the appropriate stage, with the necessaryentitiesregarding the liability, and to present it to the bank. In the event of dishonour of that cheque, the accused cannot be absolved from his liability. CRL.A NO. 1029 OF 2008 21 2024:KER:82742 23.Anothercontentiontakenupbylearnedcounselfor the respondents is that, the appellant did not produce the account books of the chitty to show that Rs.2,13,000/-was due from them. Learned counsel for the appellant would submit that, production of account books etc. may be relevant in a civil court, but as far as a criminalcaseunder Section138oftheNIActisconcerned,thereispresumption in favour of the holder of the cheque, and so the burden is upon the respondentstorebutthatpresumption.Shewould rely on a decision of the Hon'ble Apex CourtinChandelD. K.v.M/s.WockhardtLtd.andAnother[2020KHC6204] which says that production of the account books/cash book may be relevant in a civil court; but may not be so, in the criminal case filed under Section 138 of NI Act, because of the presumption raised in favour of the holder of the cheque. 24. The respondents are not disputing the fact that they had subscribed kuries with the appellant company. Ext.D1 passbook shows that the kuri commenced on 12.11.1996, and it was terminated on 12.11.1998. In the CRL.A NO. 1029 OF 2008 22 2024:KER:82742 first page of that passbook, a 'PAID' seal is found with the date14.02.1997.Accordingtotheappellant,itwasthedate onwhichthatkuriwasauctionedbytherespondents. Inthe 10th page of that passbook,thereisanendorsementinred ink, as 'c losed 14.12.1998'. So according to the respondents, the endorsement 'c losed 14.12.1998' andthe 'PAID' seal on the first pageofthepassbook,willshowthat he had paid the entire amount due under that kuri and so, no amount was due, so as to issue Ext.P2 cheque. 25. Learned counsel for the appellant would contend that,ifthekuriwasclosedon14.12.1998,thepassbookwill show the seal 'c losed', just like the 'PAID' seal in the first page. Since the kuri was auctioned by the respondents, definitely there would have been future instalments, to be paid monthly, till the termination of that kuri. When the respondents are alleging discharge of the entire kuri instalments duetotheappellant,itistheirburden,toprove itwithcogentevidence.Theycouldhaveverywellcalledfor the Registers pertaining to the kuri to show that the entire CRL.A NO. 1029 OF 2008 23 2024:KER:82742 amount has been paid by them. Learned counsel for the appellant would say that, since Ext.D1 passbook was in the custody of the respondents, they themselves might have made the red ink entry 'c losed 14.12.1998'. Since Ext.D1 passbook was with the respondents, the manipulation as alleged by the appellant cannot be ruled out. Learned trial court seems to have been carried away by the 'PAID' seal seen on the first page of Ext.D1 passbook to find that, the entire dues of the kuri was paid off by the respondents. Obviously, that 'PAID' seal was regarding payment by the company, when the kuri was auctioned by the respondents. 26.Learnedcounselfortherespondentswouldcontend that, on receipt of Ext.P5 lawyer notice, they sent Ext.D2 reply notice disowning theliabilityanddisputingissuanceof the cheque. But the appellant produced Ext.P10 notice sent by the respondents on receipt of Ext.P5 notice. In Ext.P10 notice, it was stated that the respondents were facing financial difficulties and they were making every effort to raise funds to settle the account. But, learned counsel for CRL.A NO. 1029 OF 2008 24 2024:KER:82742 the respondents would say that, they never sent Ext.P10 replynoticetotheappellant.ButExt.P10(a)postalcoverwill show that, it was sent by the respondents to Adv.Sri.K.S.Babu, who sent Ext.P5 notice. Ext.D2 notice as well as Ext.P10noticeareonthesamedayi.e.10.01.2002. But Ext.D2 was addressed to the appellant directly. The postalreceiptoracknowledgementcardofExt.D2noticewas not produced by the respondents. Since Ext.P5 notice was sent by an advocate, normally the reply also should have been given to that advocate. Ext.P10 notice along with Ext.P10(a) cover seem to be more reliable. On going through Ext.P10 notice, it could be seen that, the respondents were admitting their liability to certain extent, towards the balance amount due on prized chits. 27.Advertingtotheaforesaidfactsandcircumstances, this Court is of the view that, the trial court went wrong in acquitting the accused. So,theimpugnedjudgmentisliable to be set aside. There is evidence to show that Ext.P2 cheque was issued towards discharge of a legally CRL.A NO. 1029 OF 2008 25 2024:KER:82742 enforceable debt, and that cheque was dishonoured for the reason'A/ctransferredtosuitfile.Nobalance.'Theappellant had complied with all the statutory formalities in order to attract an offence punishable under Section 138 of the NI Act.ThecomplainantwasauthorizedasperExt.P8extractof the resolution, to file the complaint and to give evidence. The respondents failed to rebut the presumptions available in favour of the appellant, under Sections 118 and 139 of the NI Act. So, respondents 1 and 2 are found guiltyunder Section 138 of the NI Act. 28. As per Section 141 of the NI Act, if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Section 141(2) of the NI Act reads thus: CRL.A NO. 1029 OF 2008 26 2024:KER:82742 "141. Offences by companies. -- (1) xxx xxx xxx (2)Notwithstandinganythingcontainedinsub-section(1), where any offence under thisAct,hasbeencommittedby a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: For the purposes, of this section,-- (a) "company"meansanybodycorporateandincludesa firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." 29. In the case on hand, the 2nd respondent is a partnership firm and the 1st res Full Article
& P C Chanda & Company Private Limited vs Bharat Chemicals & Paints on 12 November, 2024 By indiankanoon.org Published On :: Bivas Pattanayak, J. :- 1. The instant execution case has been filed by the plaintiff-decree holder against the defendant-judgment debtor for execution of a decree dated 24th March, 2021 for a sum of Rs.12,54,607.68/-. 2. In its affidavit in support of tabular statement the decree holder contends that the judgement-debtor holds immovable property namely an office at Golpark Co-operative Housing Society, Flat no. 13/B2, 4th Floor, 49C, Govindapur Road, Lake Gardens (near Jodhpur Market), Kolkata- 2 700068 and operates bank account at UCO Bank, Park Circus Branch, Kolkata-700014. 3. The judgement debtor through its partner filed its affidavit of assets who contends that he possesses the above mentioned flat and the bank account. Full Article
& Muzibur Rahman vs Department Of Personnel & Training on 12 November, 2024 By indiankanoon.org Published On :: 1. The Complainant filed an RTI application dated 16.04.2023 seeking information on the following points: Page 1 of 6 (i) "Please provide me with the action taken report on my complaint filed on 30th March 2023. (ii) Please provide me with the present status of the above-mentioned complaint. (iii) Please provide me with the norms for disposal of complaints, including the number of days within which complaints are expected to be disposed of, as per the citizen charter." 2. The CPIO replied vide letter dated 12.05.2023 and the same is reproduced as under:- "As far as internal Vigilance Section of DoPT under this CPIO is concerned, it may be informed that your complaint dated 30.03.2023 was received electronically from CVC vide Commission's OM No. 10929/2023/vigilance-9 dated 11.04.2023 and the same was forwarded to PESB and Estt.II Division, DoPT, for further necessary action at their end, as the subject matter of your complaint was pertaining to them, vide this Department's OM No. C-13014/1/2021-Vig. dated 09.05.2023 (copy enclosed)." Full Article
& R. Mascomani vs Department Of Personnel & Training on 12 November, 2024 By indiankanoon.org Published On :: 1. The Appellant filed an RTI application dated 16.05.2023 seeking information on the following points: "Please provide the specific information / clarification on Central Civil Services (Leave) Rules, 1972. (updated as on 19.09.2022) (i) Please inform who are 'such Government Servant' referred under Rule 63 (2)(a) above (ii) Please clarify whether Rule 63(2)(a) is applicable to only to those Government servants refereed 63(1)(a) and (b) (iii) Whether both the actual amount of leave salary (Rule 63(1)) and study leave conversion to regular leave (Rule 63 (2) (a) are applicable to all government servants referred in 63 (1) and 63 (2) Full Article
& Basudev Behera & Another vs State Of Odisha .... Opp. Party on 11 November, 2024 By indiankanoon.org Published On :: Heard. 2. At the instance of the petitioner No.2, the F.I.R. in connection with Bari Ramachandrapur P.S. Case No.94 of 2017 corresponding to G.R. Case No.631 of 2017 came to be registered against the petitioner No.1 for the offences punishable under Sections 498(A)/323/325/506/34 of the IPC read with Section 4 of the D.P. Act pending in the Court of learned S.D.J.M., Jajpur. Page 1 of 4 3. The petitioner No.1 is the husband of the petitioner No.2. Their marriage was solemnized in the year 2016. Few days after their marriage, dissention arose in their family for which the petitioner No.2 lodged the F.I.R. being Bari Ramachandrapur P.S. Case No.94 of 2017 for the above alleged offences. Full Article
& Natabar Nayak & Others vs State Of Odisha & Another .... Opp. ... on 11 November, 2024 By indiankanoon.org Published On :: Heard. 2. At the instance of the opposite party No.2, the F.I.R. in connection with Ranpur P.S. Case No.10 of 2015 corresponding to S.T. Case No.22 of 2016 came to be registered against the petitioners for the offences punishable under Sections 341/ 323/ 294/ 354/ 307/ 506/324/452/427/34 of the IPC pending in the Court of learned Senior Civil Judge-cum-Assistant Sessions Judge (Women's Court), Nayagarh. 3. The allegation against the petitioners is that, on 10.01.2015, the complainant reported at the P.S. that, on the same day, when he was working with labourers, the petitioner Nos.1, 3 & 4 removed his stumps and destroyed. When the labourers opposed the same, they left the place. Then in the same evening, while the complainant was coming from his house to pay his labourers, the above accused persons being armed with lathi, katari etc. entered into his house and abused him in obscene languages. The petitioner No.2 attacked him by means of katari to kill him. At that time, one Sunil Samantaray of his village obstructed the same and he sustained bleeding injury on his left hand. Thereafter, his sister-in-law, father and mother also tried to rescue him, but the accused persons pushed them and dragged the saree of his sister- in-law and kicked her. At that time, his brother Harmohan Nayak, Prafulla Nayak, Gagan Nayak, Sanjay Nayak and others reached at the spot and rescued them. All the accused persons threatened to kill them. Hence, the F.I.R. Full Article
& Abdul Gani Bhat vs Chief Secretary Union Territory Of J&K on 8 November, 2024 By indiankanoon.org Published On :: Through: - CORAM: HON'BLE MR JUSTICE RAJESH SEKHRI, JUDGE (ORDER) 08.11.2024 The short grievance projected by the petitioner, who is present person in the Court, is that he has e-mailed various complaints to the respondents with respect to outcome of the investigation, pertaining to FIR No. 114/2022, however, the same has not evoked any response till date. The petitioner submits that he will be satisfied if the concerned authorities are directed to accord consideration and dispose of the said complaints as per law and report in this respect is furnished to him. Full Article
& Naveed Farooq Khan & Ors vs Respondent(S) on 8 November, 2024 By indiankanoon.org Published On :: 08.11.2024 1. This writ petition came out for its maiden hearing on 28th October, 2024, when this Court came across with a recital made in the writ petition that all the petitioners have already ventured with writ petitions before this Court and there are interim directions operating in those pending writ petitions in violation whereof order impugned in the present writ petition came to be passed. 2. Accordingly, this Court came to direct the learned counsel for the petitioners to place on record copies of the writ petitions related to the writ petitioners herein which are said to be pending before this Court. 3. In order to get out of the rigor of the order dated 28th October, 2024, the petitioners are stated to have even ventured in letters patent appeal which came to be dismissed as withdrawn and this is how today the learned counsel for the petitioners is back to square one with the direction still operating for the petitioners to produce all the writ petitions related to them and pending before this Court. Full Article
& M/S Jehlum Constructions vs Ut Of J&K And Others on 11 November, 2024 By indiankanoon.org Published On :: 11.11.2024 1. The petitioner has sought the quashing of the recommendations made by the State Level Evaluation Committee (SLEC) in its 4th meeting held on 09.10.2024, whereby the petitioner's technical bid was marked as "non-responsive." This decision was based solely on the ground that the petitioner did not fulfill the criteria specified under Clause 2.2.2.5(iv), "...iv. In case of project executed by applicant under category 3 and 4 as a member of Joint Venture, the project cost should be restricted to the share of the applicant in the joint venture for determining eligibility as per provision under Clause 2.2.2.2. In case statutory auditor certifies that the work of other member(s) is also executed by the applicant, then the total share executed by applicant can be considered for determining eligibility as per provision under clause 2.2.2.2" Full Article
& Abdul Rashid Mochi And Ors vs Ut Of J&K And Ors on 11 November, 2024 By indiankanoon.org Published On :: Through: - None CORAM: HON'BLE MR JUSTICE RAJESH SEKHRI, JUDGE (ORDER) 11.11.2024 This is an application filed by the petitioners to place on record the documents. For the reasons stated in the application, coupled with the submissions made at Bar, by learned counsel for the petitioners, the same is allowed and the documents are taken on record. Full Article
& Shafat Huseen & Ors vs Respondent(S) on 8 November, 2024 By indiankanoon.org Published On :: 08.11.2024 1. In terms of an order dated 31.10.2024, this Court came to direct the personal appearance of Ms. Sheetal Nanda, Commissioner/Secretary to Government Social Welfare Department, Union Territory of Jammu and Kashmir for today's hearing both in the writ petition as well as in the contempt petition for the purpose of eliciting from the Commissioner/Secretary, Social Welfare Department some informative inputs as to wherefrom the Integrated Child Development Services (ICDS) Scheme, pursuant to which in terms of the Government Order No. 50/SW of 2014 the contractual appointments of the petitioners came to take place is reckoned to be closed as from the reading of the entire reply from the respondents, and, this Court has not come across with any order/decision, express or implied, that the posts created in terms of Government Order No. 50/SW of 2014 for the purpose of running the establishment are to be wound up in terms of a later government order/decision. Full Article
& Showkat Rashid Chopan vs Union Territory Of J&K & Ors. ... on 11 November, 2024 By indiankanoon.org Published On :: 11.11.2024 1. The petitioner being a consolidated worker engaged by the Municipal Committee, Handwara came to be terminated/disengaged from service with immediate effect in terms of impugned order No. MC/Hand/Estt/2022-23/32-36 dated 06.04.2023 by the Executive Officer, Municipal Committee, Handwara. This order is under challenge in the present writ petition by the petitioner. 2. In terms of an order dated 12.04.2023, this Court came to keep on hold the operation of the impugned order dated 06.04.2023, with a further interim direction unto the respondents to allow the petitioner to continue as a consolidated worker in terms of his original engagement order dated 30.12.2006. Full Article
& Nisar Ahmad Makhdoomi And Anr vs State Of J&K And Ors on 8 November, 2024 By indiankanoon.org Published On :: Through: - Mr. Furqan Yaqoob, GA CORAM: HON'BLE MR JUSTICE RAJESH SEKHRI, JUDGE (ORDER) 08.11.2024 The subject matter of this petition falls within the definition of 'service matters' as contained in Section 3(q) of the Administrative Tribunals Act, 1985 (hereinafter referred to as 'the Act'), which has become applicable to the Union Territories of Jammu and Kashmir and Ladakh, after coming into force of the Jammu and Kashmir Re- Full Article
& Tasleema Jan vs Ut Of J&K And Ors on 8 November, 2024 By indiankanoon.org Published On :: Through: - Mr. Furqan Yaqoob, GA CORAM: HON'BLE MR JUSTICE RAJESH SEKHRI, JUDGE (ORDER) 08.11.2024 Vide common Judgment dated 26.05.2022, passed by this Court in SWP No. 1002/2018 titled Tasleema Jan Vs. State and Ors., and SWP No. 876/2015, titled Roomi Akhter Vs. State and Ors., following directions were passed against the resondents. "i) The respondents shall consider the claim of both the candidates, Roomi Akhter and Tasleema Jan, in respect of their engagement as Angan Wari Worker for the Anganwadi Centre in question. Both the petitioners shall be associated with the consideration process by allowing them to put forward their stand effectively. Full Article
& Managing Director & Ors vs Jk Agro Industries Dev. Corp. Ltd. ... on 11 November, 2024 By indiankanoon.org Published On :: 11.11.2024 Ms. Rasheeda Shaheen, Advocate was appearing on behalf of the contesting respondents No. 1 to 3. Learned counsel submits that the respondent No. 2-Showkat Ali Para has expired and is now representing the respondent No. 1 & 3. Let requisite application along with death certificate for bringing on record the legal representatives of the respondent No.2-Showkat Ali Para be submitted by the legal representatives of the respondent No. 2 for the purpose of contesting the case of the petitioners. In the meantime, an application CM 733/2024 has come to be preferred on behalf of the respondent No. 1 & 3 with respondent No. 2 being no more, as such, cannot be referred for the purpose of being an applicant seeking release of the awarded amount as awarded by the Assistant Labour Commissioner under Minimum Wages Act, 1948. Full Article
& M/S Bismillah Stone Crusher vs Ut Of J&K And Ors on 8 November, 2024 By indiankanoon.org Published On :: Through: - Mr. Furqan Yaqoob, GA CORAM: HON'BLE MR JUSTICE RAJESH SEKHRI, JUDGE (ORDER) 08.11.2024 The petitioner is aggrieved of order dated 195-JKPCC of 2024 dated 16.10.2024, by virtue of which the stone crusher unit of the petitioner has been directed to be closed by respondent No. 2 on the ground that the petitioner has failed to produce the requisite documents from the revenue department as per Rule 10 of S.O. 60 of 2021 dated 23.02.2021 without valid consent from the J&K Pollution Control Committee and that the unit of the petitioner is being run in violation of Section 25/26 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981. By virtue of the impugned order, respondent No. 3 has also been directed to de-register the stone crusher of the petitioner. Full Article
& M/S Chand Store Crushers Golepora vs Ut Of J&K And Ors on 8 November, 2024 By indiankanoon.org Published On :: Through: - Mr. Furqan Yaqoob, GA CORAM: HON'BLE MR JUSTICE RAJESH SEKHRI, JUDGE (ORDER) 08.11.2024 The petitioner is aggrieved of order dated 212-JKPCC of 2024 dated 18.10.2024, by virtue of which the stone crusher unit of the petitioner has been directed to be closed by respondent No. 2 on the ground that the petitioner has failed to produce the requisite documents from the revenue department as per Rule 10 of S.O. 60 of 2021 dated 23.02.2021 without valid consent from the J&K Pollution Control Committee and that the unit of the petitioner is being run in violation of Section 25/26 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981. By virtue of the impugned order, respondent No. 3 has also been directed to de-register the stone crusher of the petitioner. Full Article
& Bentley Motors amână planul pentru producția de vehicule electrice By www.forbes.ro Published On :: Tue, 12 Nov 2024 11:07:29 +0000 Bentley Motors Ltd. amână planul de a oferi doar vehicule complet electrice (EV – electric vehicles) până în 2030, pentru că vânzările de EV-uri continuă să dezamăgească la nivel de industrie. Compania va extinde termenul pentru strategia de afaceri „Beyond100” – acum denumită „Beyond100+” – cu cinci ani, până în 2035, a declarat președintele și ... The post Bentley Motors amână planul pentru producția de vehicule electrice appeared first on Forbes Romania. Full Article Actualitate Afaceri Auto Bani și Investiţii
& Bursa elvețiană cumpără Aquis din Marea Britanie în cea mai mare achiziție din 2020 By www.forbes.ro Published On :: Tue, 12 Nov 2024 11:10:05 +0000 Operatorul bursei elvețiene, SIX Group AG, a convenit achiziția Aquis Exchange Plc, o bursă de tranzacționare și furnizor de date din Marea Britanie, într-o tranzacție cu o valoare de aproximativ 194 milioane de lire sterline (250 milioane de dolari), potrivit Bloomberg. Conform unui comunicat de presă emis luni, consiliul Aquis a recomandat în unanimitate această ... The post Bursa elvețiană cumpără Aquis din Marea Britanie în cea mai mare achiziție din 2020 appeared first on Forbes Romania. Full Article Actualitate Afaceri Bani și Investiţii
& Team Montage – O companie de familie, o poveste de succes By www.forbes.ro Published On :: Tue, 12 Nov 2024 11:24:49 +0000 Know-how, pasiune, familie și echipă, ingredientele succesului companiei Team Montage, care anul acesta împlinește 15 ani de activitate în piața industriei metalice din România. Interviu alături de Boštjan Jagodič – Founder Team Montage, și Claudia Jagodič – Managing Director Team Montage Care sunt principalele obiective ale strategiei de business şi principalele realizări ale companiei dumneavoastră ... The post Team Montage – O companie de familie, o poveste de succes appeared first on Forbes Romania. Full Article TEAM MONTAGE VOICE
& Creditorii companiei Angst au aprobat vânzarea unor spații comerciale în valoare de 3,6 milioane de euro By www.forbes.ro Published On :: Tue, 12 Nov 2024 11:56:49 +0000 Adunarea Generală a creditorilor companiei Angst a aprobat valorificarea a patru spații comerciale din București și unul din Ilfov, cu valoare totală de piață de 3,6 milioane de euro. Infinexa, companie antreprenorială românească specializată în restructurarea și finanțarea firmelor aflate în dificultate, anunță scoaterea la licitație a cinci spații comerciale ce aparțin procesatorului de carne ... The post Creditorii companiei Angst au aprobat vânzarea unor spații comerciale în valoare de 3,6 milioane de euro appeared first on Forbes Romania. Full Article Actualitate
& BNR: Leul s-a depreciat marți în raport cu principalele valute By www.forbes.ro Published On :: Tue, 12 Nov 2024 12:41:51 +0000 Moneda naţională s-a depreciat, marţi, în raport cu euro, care a fost calculat de Banca Naţională a României (BNR) la 4,9761 lei, în creştere cu 0,12 bani (+0,02%) faţă de cotaţia precedentă, de 4,9749 lei. De asemenea, leul a pierdut teren în faţa dolarului american, care a fost cotat la 4,6867 lei, în creştere cu ... The post BNR: Leul s-a depreciat marți în raport cu principalele valute appeared first on Forbes Romania. Full Article Actualitate Bani și Investiţii Macroeconomie BNR dolar euro leu
& Code Read With Sections 66/66B/72 Of The ... vs In Re: Ganesh Narayan Jadhav & Anr on 11 November, 2024 By indiankanoon.org Published On :: Nobody appears for the petitioners. 2. Accordingly, the application for anticipatory bail is dismissed for default. (Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.) Signed By : ARUP KUMAR DAS High Court of Calcutta 12 th of November 2024 03:58:09 PM Full Article
& Girija Shankar Verma @ Varma & Anr vs State Of West Bengal & Anr on 12 November, 2024 By indiankanoon.org Published On :: 1. Challenging the impugned proceeding being GR Case no. 1238 of 2021, arising out of Lake Town police station case no. 263 of 2021, petitioners have preferred the present Application with a prayer for quashing the said proceeding, qua the petitioners herein. 2. Petitioner contended in the Application that complainant stated in the FIR (First Information Report) that the opposite party no.2/FIR maker was introduced to Mr. Sanjoy Kumar Agarwal by one Subhash Kumar Roy and one Samaresh Das and relying upon the representation that the said Sanjoy Kumar Agarwal is a developer, the petitioner expressed his desire to join Mr. Agarwal as partner in his firm and thereafter Mr. Agarwal took the opposite party as a partner with him in his partnership firm namely "Shree Krishna Realtors". It is alleged that relying upon said representation the opposite party no.2 along with aforesaid person entered into a registered development agreement dated 18.12.2016 and it is further alleged that when the construction work commenced, said Sanjay Kumar Agarwal took control of the project and also taking advantage of the same took custody and control of the bank account, cheque books, vouchers papers etc. It has been further alleged that the opposite party No. 2 from time to time deposited money in the accounts of his said partner Sanjoy Kumar Agarwal but he did not cooperate with the opposite party no.2 herein /FIR maker and not only that said Sanjay had made huge withdrawal of funds and also misappropriated the funds of the firm amounting to Rs. 40 lacs in between August 2016 to March 2020 on the basis of false and fabricated documents and thereafter retired from the said firm on 17th November, 2020. The allegation against the present petitioners is that said Sanjay and the petitioners are jointly fraudulently took advance money from different buyers pertaining to the said project but neither executed deed nor refunded refundable money. Full Article
& Kali Kishore Bagchi vs Security And Exchange Board Of India & ... on 12 November, 2024 By indiankanoon.org Published On :: 1. The present revisional application has been preferred by the petitioner against an order dated 22.04.2022 passed by the learned Judge, 5th Special Court, Kolkata, in the proceeding being Special Case No. SEBI/39/2018. 2. The petitioner's case is that the petitioner had joined in Amrit Bio Energy and Industries Limited as an executive director on 27.04.2004, for the erection and commissioning of renewal energy power project. The said Amrit Bio Energy and Industries Limited is a group of companies under Amrit Projects Ltd. a company incorporated under the provisions of the companies Act, 1956. After being satisfied with the performance of the petitioner, Kailash Chand Dujari, the Managing Director of Amrit Projects Ltd. and its group of companies had offered the petitioner to become director of several other group companies of Amrit Projects Ltd. After joining the said Amrit Group the petitioner was to look into the development and set up of a power project of 10 M.W. in the District of Bankura, West Bengal. The said project was successfully completed under the supervision of the petitioner. The said Amrit Project Limited had started a business receiving deposits from the public at large without consulting with the petitioner. The petitioner had tendered resignation and resigned from the said Amrit Projects Limited and all its group of companies in the year 2013. Full Article
& Pranab Roy & Ors vs The State Of West Bengal & Anr on 12 November, 2024 By indiankanoon.org Published On :: 1. The present revisional application has been preferred by the petitioners praying for quashing of the proceeding being GR No. 1173 of 2022 arising out of Shyampukur P.S. Case No. 85 of 2022 dated 29.09.2022, pending before the learned Additional Chief Metropolitan Magistrate at Calcutta, under Sections 354A/354B/323/506/509/188/427/34 of the Indian Penal Code. 2. The petitioners' case is that G.R. No. 1173 of 2022 arising out of Shyampukur P.S. Case No. 72 of 2022 dated 29.09.2022 was registered on the basis of a complaint lodged by one Smt. Mita Roy, wife of Shri Pradip Roy, residing at 8B, Abhoy Mitra Street Police Station- Full Article
& Everrise Housing Pvt. Ltd. & Anr vs The State Of West Bengal & Ors on 8 November, 2024 By indiankanoon.org Published On :: as follows. The writ petitioners namely, Everrise Housing Private Limited being the Petitioner No. 1 and one Sanjay Agarwal, Director Everrise Housing Private Limited came forward before this Hon'ble Court prayed for declaring the purported proceeding initiated in terms of the alleged notification bearing no. 9817-LA (II) /5 M-1/88 Pt. dated 30th December, 1989 as lapsed. The issue was whether a Post-Acquisition Purchaser or a purchaser after the issuance of a notice under Section 4 and 6 of the Land Acquisition Act, 1894 had any legal right to challenge the acquisition proceeding on the ground of lapse or any other grounds. The answer was 'No'. There was no single instance or any case which had been successfully challenged by the Post Acquisition Purchaser or after the issuance of a notice under Section 4 and 6 of the Land Acquisition Act, 1894, since 1894 till July, 2024 and or the same had been declared as Good Law. On the contrary, there were hundreds of decisions that Post Acquisition Purchaser had no legal standing to the question of acquisition or to its lapse. The reason was that the legal precedent of jurisprudence surrounding the Land Acquisition Act, 1894 had established that a purchaser a land after issuance of notice under Section 4 and 6 of the Act did not have any locus Standi to challenge the acquisition or the lapse of the acquisition proceeding. This was because the right of the original land owner was extinguished upon the acquisition and the purchasers' right were derivative and limited to the extent of their purchase. They were not aggrieved parties therefore, lacked legal capacity to question the acquisition or its lapse. In the case of Shiv Kumar and Another Vs. Union of India and others reported at (2019) 10 SCC 229, it had been clearly stated that admittedly Power under Section 17(4) was exercised dispensing with the enquiry under Section 5A and on service of notice under Section 9 possession was taken since urgency was acute viz pumping station house to be constructed to drain out flood water. Consequently, the land stood vested in the State under Section 17(2) free from all encumbrances. It was further settled law that once possession was taken by operation of Section 17(2) the land vested in the State free from all encumbrances unless a notification under Section 48(1) was published in the gazette withdrawing the acquisition. Section 11A as amended by Act 68 of 1894 therefore, did not apply and the acquisition did not lapse. The said Judgment held, "It has been laid down that purchasers on any ground whatsoever cannot question proceeding for taking possession. A purchaser after Section 4 notification does not acquire any right in the land as the sale is ab-initio void and has no right to claim the land under policy". Paragraph 22 of the said Judgment stated," a nullity is inoperative and a person cannot claim the land or declaration once no title has been conferred upon him to claim the land should be given back to him". The said judgement was of Three Judges' Bench and had been affirmed the case of Indore Development Authority Vs. Manoharlal reported at (2020)8 SCC 129. In the case of Indore Development Authority Vs. Manoharlal reported in (2020)8 SCC 129 it had been held by the Five Judges' of the Hon'ble Supreme Court "It does not visualise a situation where possession has been taken under the urgency provision of Section 71, but the award has not been made in such case under Section 24(1)(a) of the 2013 Act, there is no lapse of entire proceeding but compensation is to be determined in accordance to the provisions of the 2013 Act. In case of urgency possession is usually taken before the award is passed. Thus, where no award is passed, where urgency provisions under Section 17(1) of the 1894 Act had been invoked, there is no lapse". In this instant case the provision of Section 17(4) of 1894 Act had been invoked and as such, there could not be any lapse of the proceeding under Section 11A of the Land Acquisition Act in any manner whatsoever. In the case Delhi Development Authority Vs. Godfrey Philips (1) Limited and Others reported at (2022) 8 SCC 771 stated that still further the purchaser had purchased the property after vesting of the land with the State. In fact, none of Dharam Trust earlier Three Judges Bench Judgement in M. Venkatesh was not even referred to the purchaser had no right to claim lapsing of acquisition proceeding in view of the recent Larger Bench Judgement of this Court in Shiv Kumar Vs. Union of India reported in (2019)10 SCC 229 it had been held the purchaser had no right to claim a declaration sought for. In very recent judgement in the case of Delhi Development Authority Vs. Narendra Kumar Jain and Others reported at (2024) 3 SCC 721, it had been held deemed lapse of acquisition proceedings none payment of compensation was not a ground, where possession of land taken furthermore writ petition by subsequent purchaser claiming lapse of proceeding, held not maintainable as such person did not have locus standi to challenge acquisition proceeding and/or pray for deemed lapse of acquisition proceeding. In paragraph 4 of the said judgment it was stated "however, it is required to be noted that the decision of this Court in Manab Dharam Trust which has been relied by the High Court while passing the impugned judgement and order, is held to be not a good law in view of the decision of this Court in Shiv Kumar Vs. Union of India and subsequent decision of this Court in DDA Vs. Godfrey Philips (1) Limited reported in (2022)8 SCC 771". In paragraph 5 it stated "In Shiv Kumar Vs. Union of India and DDA Vs. Godfrey Philips (1) Limited, it is specifically observed and held that the subsequent purchaser has no locus Standi to challenge the acquisition and/or pray for deemed lapse acquisition". The petitioner relied upon a decision (reportable) in M/S Delhi Airtech Services Pvt. Vs. State of U.P. on 14th October, 2022 by Two Judges Bench without referring and considering the ratio of the Judgment of Shiv Kumar Vs. Union of India reported in (2019)10 SCC 229 which was a larger bench decision. In paragraph no. 26, the concluding paragraph (ii) if the requirement was compiled and possession was taken after tendering and paying eighty per centum, though there was need to pass an award and pay the balance compensation within a reasonable time, the rigor of section 11A of Act, 1894 would not apply so as to render the entire proceedings for acquisition to lapse in the context of absolute vesting. The right of land loser in such case was to enforce passing of the award and recover the compensation. The ratio of this case was distinguishable in the facts and circumstances of the case of the petitioner as the right of land loser in such case was to enforce passing of the award and recover the compensation, but the same could not be the right of a Post Acquisition Purchaser under any circumstances and as such, the judgement relied upon by the petitioner was distinguishable and had no manner of application in the facts and circumstances of this case. First of all, it had not considered the judgement passed in the case of Shiv Kumar Vs. Union of India reported at (2019)10 SCC 229 a judgement of Three Judges' Bench and the judgment did not consider paragraph 123 of the case reported in Indore Development Authority Vs. Manoharlal reported at (2020)8 SCC 129 which was a judgement of Five Judges and as such, the writ petition was liable to be dismissed with exemplary costs solely on the ground that the land in possession of the government and notice under Section 17 Sub Section (4) had been invoked and the judgment relied upon by the petitioner was of the judgement of Two Judges Bench without considering the ratio of Three Judges and Five Judges Bench. Furthermore, in the recent judgment of (2024)3 SCC 721 it had affirmed the judgment of Shiv Kumar Vs. Union of India and DDA Vs. Godfrey Philips (1) Limited and as such, the instant writ petition was devoid of merit and was liable to be dismissed with costs. In the case reported at (2011) 5 SCC 394 it was held that once possession had been taken under section 17 section 11A could not be sustained and elaborate explanation had been given. Full Article
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