The attendance of the accused respondent can be best secured by issuing a bailable warrant or non bailable warrant and it is a matter which rests entirely in the discretion of the court. Although, the discretion is exercised judiciously, it is not possible to Computerize and reduce into immutable formulae on the basis of which this discretion is exercised. The issuance of non-bailable warrants involves interference with personal liberty, Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful. These were stated by High Court of Delhi consisting, Justice Rajnish Bhatnagar in the case of Afzal Ahmed vs. State [CRL.M.C. 176/2022] on 24.01.2022.

The facts of the case are that the petitioner could not appear before the trial court timely and at 11.30 am the trial court issued non bailable warrants against the petitioner and also forfeited the bonds. The petitioner at around 12.30 pm appeared before the trial court, and moved an application for cancellation of his warrants on the ground that he got late because his motorcycle went out of order, so he could not reach the court on time. Non-appearance of the petitioner on time was neither intentional nor deliberate, however he was diligent and has moved the application for cancellation of warrants on the very same day in pre-lunch session. Further, the petitioner was taken into custody by the learned trial court. Therefore, a petition was filed by the petitioner under Section 482 Cr.P.C. seeking cancellation of NBWs issued against the petitioner and for setting aside of the impugned order.

The Counsel for the petitioner submitted that warrants were issued by the trial court during the early hours of morning, and that the petitioner moved the application for cancellation of warrants on the same very day, shows his bonafide. He further submitted that non-bailable warrants should not be issued casually and mechanically as the same involves interference with the personal liberty of an individual.

The Counsel for the respondent submitted that two police witnesses were present on the said date, and because of non-appearance of the accused-petitioner the witnesses had to be sent back unexamined. It was submitted by the witnesses that they couldn’t wait further as they had to attend their duties. As two witnesses were present in the morning and they could not be examined due to non-appearance of accused, it was contended that his non-appearance appeared intentional.

The High Court of Delhi held that the attendance of the accused respondent can be best secured by issuing a bailable warrant or non bailable warrant and it is a matter which rests entirely in the discretion of the court. Although, the discretion is exercised judiciously, it is not possible to Computerize and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the court would take into account the various factors such as the nature and seriousness of the offence, the character of the evidence, and circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and the State. The issuance of non-bailable warrants involves interference with personal liberty, Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful. The warrants either bailable or non bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The Court, by keeping in view the totality of facts and circumstances application moved by the petitioner did not find favour with the learned trial court resulting in its dismissal on the very same day and petitioner was taken into custody, therefore, it was held that the impugned order in these circumstances cannot be sustained and was accordingly set aside.

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Judgment reviewed by Shristi Suman.

Settlement order passed with regard to the  suo motu settlement application filed – THE SECURITIES AND EXCHANGE BOARD OF INDIA

Applicant Mrs. Amrita Prabhakar Deodhar filed a suo motu settlement application proposing to settle, without admitting or denying the findings of fact and conclusions of law, through a settlement order for the alleged violation of Regulation 10(5) of SEBI regulation,2011 and the proceedings for settlement were initiated under S.K. MOHANTY, ANANTA BARUA (Whole Time Member) in the  Settlement Application No. 6537 of 2021

The applicant was a promoter of APlAB Limited and was the individual holder of 24.35% share capital of the company along with a person acting in concert holding 18,75,639 equity shares representing 37.51% of the total share capital of the company. On  July 08, 2021, the applicant acquired 0.85%of equity shares of the total company and the aforesaid shareholding resulted in the increase of total holding from m 24.35% to 25.20% and it was a violation as prescribed under Regulation 3(1) read with Regulation 3(3) of SAST Regulations. In terms of  Regulation 10(1)(a)(i) of the SAST Regulations. The applicant before acquiring the share should have been informed at least four days before but the same was delayed six days and within the applicant was alleged to have violated Regulation 10(5) of the SAST Regulations.

The high powered advisory authority considered the application and the settlement terms proposed by the applicant and settled upon the amount ₹3,31,500/-

The authority passed the order under Section 15JB of the Securities and Exchange Board of India Act, 1992 and in terms of Regulations 23 read with Regulation 28 of the Settlement Regulations the order proposed the condition and direction for the applicant to follow hence the settlement is completed.

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Order reviewed by Naveen Sharma

Revision petition filed against the decision of appellate court demanding to seek  revisional jurisdiction dismissed – Jharkhand high court

A criminal revision petition was filed against the order of the appellate court which dismissed the criminal appeal of the petitioner against the judgment of the sessions judge who convicted and sentenced the petitioner under sections 406 and 420 of the Indian Penal Code. The present appeal is filed to review this judgment . the appeal was heard and dismissed by a single judge bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of Md. Kalim Versus The State of Jharkhand(Cr. Rev. No. 653 of 2002)

The Learned counsel for the petitioner submitted that there is no element of entrustment proved from the records of this case for the conviction of the petitioner the matter relates to payment of the award to the awardees of land acquisition and admittedly the cheques were issued in the names of the awardees and the cheque amounts were deposited in their accounts but it has been alleged that withdrawn amount was taken by the accused petitioner and therefore entire amount was not handed over to the awardees and there is also an unexplained delay in filing the FIR. it is also submitted that the branch manager of the bank in which the money was deposited and the examination shows that has deposed that the amount was paid in cash to the awardees after the amount was credited in their bank accounts on proper identification with this the counsel submits that the basic ingredients for the offense under Section 420 of the Indian Penal Code are also missing in the present case. Hence, the revision petition should be allowed in the present case.

The learned counsel appearing on behalf of the respondents opposes the prayer and submits that there are concurrent findings recorded by the learned courts below after scrutinizing the materials on record, which does not call for any interference. the council did not deny the fact that the Branch Manager of the Bank has been examined before the learned court below as court witness and he has also proved the entire documents relating to the opening of bank account, deposit of the cheques, and the withdrawal of the amounts by the awardees based on their withdrawal slips signed by them.

The learned court after hearing both the sides reviews the judgment of lower courts and decides that the courts have considered all the relevant materials on record and have returned concurrent findings holding the petitioner guilty of an offense under sections 406 and 420 of IPC by well-reasoned judgment and confirms that the basic ingredients of an offense under section 406 and 420 are proved by the prosecution beyond the shadow of all reasonable doubts. The court relied on the case of Jagannath Choudhary and others reported in (2002) 5 SCC 659 and Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) explaining the revisional jurisdiction of courts and the learned court decides that there is sufficient evidence in support of the finding of fact reached by the two subordinate courts and is of the view that the finding of fact is presentable and do not suffer from any perversity, illegality or material irregularity calling for any interference in revisional jurisdiction of this court and rightly upholds the sentence of the petitioner.

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Judgment reviewed by Naveen Sharma

The issue in involving a case where after years of courtship and promise to marry, the man ultimately married another woman as his family supported their marriage, such a promise  was held by the Karnataka High Court to not fall within the purview of Cheating under section 420 of IPC .The bench consisted of Justice K Natarajan in the matters between Venkatesh v. State of Karnataka Criminal petition No. 5865 of 2021 decided on 13.1.2022.

The facts of the case involved an allegation on behalf of the complainant that the accused met her 8 years ago and started courtship and also agreed to marry her.Later on, the man married another woman because his family supported his marriage. She filed a complaint against the man who was charged under sections 420, 506 with Section 34 of the IPC.

The counsel on behalf of the Petitioners contended a simple promise to marry which is breached does not constitute an offender under Section 415 of the IPC. Further, after the case was filed in May 2020, there had been no investigation by the police, and the case was filed only to harass the man and his family.

No counsel on behalf of the Respondent appeared before the court even after issue of notice in pursuant to the same.

The Karnataka High Court held that promise of marriage and breach of contract will not attract the provisions of Sections 417 and 420 of the IPC. The decisions of the Madras High Court  in KU Prabhuraj v. State by Sub Inspector of Police AWPS Tambaram and Anr  was relied upon along with the Supreme Court in SW Palanitkar and Ors. v. State of Bihar and Anr. where it was determined that the breach of contract could not lead to criminal prosecution for fraud at the time the crime was allegedly committed and initially demonstrated dishonest intent is an abuse of procedural law. The FIR was crushed and petition was also allowed.

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Judgement reviewed by Bhaswati Goldar

The issue whether a company involved in arbitration proceedings may continue the arbitration proceedings even after CIRP has been been approved by COC of the company was considered by the division bench of Supreme Court consisting of Justice AM Khanwilkar and Dinesh Maheswari in the matters between  Fourth Dimension Solutions Ltd. v. Ricoh India Ltd. Civil Appeal No. –5908 of 2021 decided on 21.1.2022.

The facts of this are defendant Ricoh owed the appellant Rs.511 crores. It is stated that NCLT has approved a resolution plan that dismisses the appellant’s (Fourth Dimension Solutions Ltd.) claims, even though the appellant is the highest operational creditor of the respondent company Ricoh India. The Supreme Court also upheld the resolution plan, despite the appellant’s objection that the same decision was pending before NCLAT. However, while the higher court approved the plan, it directed NCLAT to decide on the merits of appellant’s objection to the substantive resolution plan. Despite this, NCLAT said it would be impossible for the court to do so, as the Supreme Court approved the resolution plan. The NCLAT took a contrary position and rejected the appellant’s objection to the resolution plan. Thus forcing the appellant approached the Supreme Court.

The counsel on behalf of the Appellant contended  that they would be left with no “recourse to satisfy his legitimate claims” even though it is the highest operational creditor and has Rs. 511 crores owed to it. It has also invoked arbitration proceedings against Ricoh but it was adjourned sine die after filing insolvency petition.

The counsel on behalf of the Respondent contended  that the operational creditors of the company seek permission under the insolvency proceedings to continue the arbitration proceedings even though the COC of the company have already approved the CIRP.

The Supreme Court held continuance of arbitration proceeding is permitted and dismissed the appeal, giving the parties the freedom to pursue all claims brought to them in the proceedings pending at the relevant time. It was stated that arbitration proceeding are continuing between the parties. If so, all disputes available to both parties will be settled on its own merits in accordance with the law in the proceedings in question.

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Judgement reviewed by Bhaswati Goldar