0

The petitioner shall abide by the conditions stipulated under Section 438(2) Cr.P.C.: High court of Punjab and Haryana

The petitioner was convicted under section 380 of the Indian penal code 1860, i.e., “Theft in dwelling house, etc.—Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment and shall also be liable to fine.”  and section 457 IPC, i.e., “Lurking house-trespass or house-breaking by night in order to commit an offense punishable with imprisonment. —Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offense punishable with imprison­ment and fine.”

According to the case even though the interim bail was made absolute the petitioner was required to join the further investigation and abide by the conditions mentioned under section 438(2) Cr.P.C. which states that “When the High Court or the Court of Session makes a direction a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer”

 This was filed in FIR No.41 on the 28th February 2021 which was registered at the police station in the district of Gurdaspur   Therefore the petitioner is seeking before this high court anticipatory bail. This judgment and final order were given in the high court of Punjab and Haryana at Chandigarh by Hon’ble Mr. Justice Anupinder Singh Grewal in the case of Rohit Kumar v/s. State of Punjab CRM-M-11976-2021 on the 23rd of July 2021.  Mr. Varinder Basa represented as the advocate for the petitioner and Mr. Dhruv Dayal represented the state of Punjab. The proceedings of the court were held through video conference due to the covid-19 pandemic.

According to the facts of the case, 43 mobile phones had been stolen and there was a delay of four days in registering the FIR, the petitioner has been brutally beaten up by the complainant on the basis of suspicion, a copy of MLR (medical-legal report) of the petitioner is given to the court regarding the same and also the petitioner has not been previously involved in any criminal case.

According to the previous court order on the 22nd of may 2021 which directed the petitioner to appear before the investigation officer and join the investigation and because of this arrest he was released on ad-interim bail to satisfy the investigating officer under the conditions in section438(2) Cr.P.C.

However, the advocate representing the state of Punjab, stated that even though the petitioner was present for the investigation and 10 mobile phones were recovered from him, the petitioner fails to corporate and more recoveries have to be effected from him and the counsel also claimed that 20 mobile phones were recovered from the co-accused.

Therefore, the high court of Punjab and Haryana concluded after hearing the counsel for both the petitioner and state “In view of the above and the petitioner had joined the investigation, the order dated 22.03.2021 granting interim bail to the petitioner is made absolute. However, the petitioner shall abide by the conditions stipulated under Section 438(2) Cr.P.C. He shall also join the investigation as and when called upon to do so. The petition stands disposed of”

Click here to read the judgment

 

0

Petitioner did not comply with the direction of the Appellate Court in terms of Section 148 of the NI Act: High court of Punjab and Haryana

According to section 148 of the negotiable instrument act,1885, “power of the appellate court to order payment pending appeal against conviction. Section 148 has been introduced in the NI Act, for cases where an appeal is filed against the conviction of the drawer under Section 138 of NI Act.” An order dated 31st January 2020 was passed by the appellate court stating that the exemption from personal appearance for the petitioner has been dismissed and his bail bonds were cancelled for not depositing 20% of the compensation amount, therefore the petitioner has impugned the above order.

This judgment and final order were given in the high court of Punjab and Haryana at Chandigarh on the 23rd of June 2021 by Hon’ble Mr. Justice Anupinder Singh Grewal in the case of Satbir Singh and another v/s. the state of Haryana and another CRM-M-19462-2021. The court proceedings were held through video conference due to the covid-19 pandemic.

The following are the facts of the case, the petitioner was accused by the complainant under section 138 of the negotiable instruments act,1885 (NI) which states that “Dishonour of a cheque for insufficiency, etc., of funds in the account provides that when the cheque is dishonored for insufficiency of funds or any of the prescribed reasons, the one who is at defaulter can be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or both”.

The petitioner was also convicted by the trial court and required to undergo two years imprisonment and pay Rs. 30 lakhs, due to the unsound financial condition of the petitioner, the appellate court directed the petitioner to deposit 20% of the fine awarded by the trial court within 60 days and the petitioner failed to do so the same.

According to the counsel representing the petitioner (Mr. Pawan Attri) stated before the court that the order passed by the appellate court is too harsh and considered inhumane as the petitioner is not of sound financial condition.  He also contends that the petitioner is not capable to currently pay 20% of the compensation and would fail to comply with the terms of the order passed by the appellate court.

The court concluded that “Section 148 of the NI Act has been introduced by amendment w.e.f. 01.09.2018 stipulates that the Appellate Court may order the appellant to deposit a sum that shall be a minimum of 20% of the fine or compensation awarded by the trial Court. The challenge to the amendment was negated by the Supreme Court in the case of Surinder Singh Deswal @ Col. S.S. Deswal and others vs. Virender Gandhi, 2020(1) RCR (Criminal) 604. Therefore, the petitioner did not comply with the direction of the Appellate Court in terms of Section 148 of the NI Act, I do not find any merit in this petition which stands dismissed.”

Click here to read the judgment

0

Company cannot be reinstated solely to litigate: NCLT New Delhi bench

A company which has not been operating for a considerably long period of time will be struck of the rolls from the register of companies by the registrar of companies and such a company ceases to exist. This company cannot be reinstated to its powers priorly awarded solely for the purposes to litigate. This was held by the coram comprising of Hon’ble Member Shri Abni Ranjan Kumar Sinha and Hon’ble member Shri. L.N. Gupta in the case of M/s. Swastik Finbuild India Private Limited and Ors. Vs. The Registrar of Companies on the 22nd of July 2021 before the National Company Law Tribunal, New Delhi Bench, (court – II).

The brief facts of the case are, the appellant company was established in the year 1996 and during that year, the Company bought a plot vide Sale Deed dated 03.05.1996 registered with the Revenue District of Gurugram, in order to implement a housing project. It is added that a legal dispute arose on the said plot, as a result of which the Appellant Company could not execute the project for which the plot was purchased. The RoC Delhi and Haryana had struck off the Appellant Company’s name from the Register due to defaults in statutory compliances, namely, failure to file Financial Statements & Annual Returns since in its incorporation. Consequently, the RoC initiated proceedings under Section 248 of the Companies Act 2013 and struck off the name of the Appellant Company from its Register vide STK-7 Notice No. ROC/DELHI/248(5)/STK-7/5071 dated 01.09.2017. The name of the Appellant Company appeared at serial no. 22002 of the list of companies, whose names were stuck off due to default in Statutory compliances. The present Appeal has been preferred by M/s. Swastik Finbuild India Private Limited (hereinafter referred to as the ‘Appellant Company’) under Section 252(1) of the Companies Act, 2013 for seeking restoration of the Appellant Company in the register maintained by the Registrar of Companies, NCT of Delhi and Haryana (RoC).

The appellant submitted that in order to defend/allege its claim before the Courts in two other litigations, the Appellant Company has sought restoration of its name in the Register of ROC. Further, the Appellant Company has averred that it is in position to file its Balance Sheets for the Financial Years from 1996 to 2016-17. The ROC submitted that the Appellant Company has not been able to substantiate that it was in operation. Even since launching of MCA-21 portal in 1996, no records of the Annual Return and balance sheet of the Company exist on the portal. The have added that Company has not submitted any document except the balance Sheet for one Financial Year i.e., 2016-17 only in which too, the revenue from its operations is “Zero’. The learned bench heard both the parties and observed that the only ground on which the Appellant Company is seeking its revival is the Litigations that are pending by or against it. It was observed that, the Company has not done any business since its inception i.e., from 1996 to 2017, which is a long period of 21 years. This clearly depicts that the Company never had any intention to do any business.

The bench relied on the judgement in Alliance Commodities Private Limited Vs. Office of Registrar of Companies, West Bengal, Company Appeal (AT) No. 20 of 2019 “Section 252 (3) of the Companies Act, 2013 empowers the Tribunal to order restoration of a Company whose name has been struck off from the Register of Companies, if such company, any member or creditor or workman thereof feeling aggrieved by such striking off applies before the Tribunal seeking restoration of the struck off company to the Register of Companies before the expiry of twenty years from the publication in Official Gazette of notice under Section 248(5). The exercise of such power is properly regulated and depends upon satisfaction of the Tribunal that the Company at the time of its name being struck off was carrying on business -10- Company Appeal (AT) No. 20 of 2019 or in operation or otherwise it is ‘just’ that the name of company be restored. We do not find ourselves persuaded to agree with the proposition canvassed by learned counsel for the Appellant that inspite of Appellant’s inability to demonstrate that the Company was at the relevant time carrying on business or in operation, the Tribunal had vast powers to order restoration of Company on the ground “or otherwise”. This term “or otherwise” has been judiciously used by the legislature to arm the Tribunal to order restoration of a struck off company within the permissible time limit to take care of situations where it would be just and fair to restore company in the interest of company and other stakeholders. Such instances can be innumerable. However, this term “or otherwise” cannot be interpreted in a manner that makes room for arbitrary exercise of power by the Tribunal when there is specific finding that the Company has not been in operation or has not been carrying on business in consonance with the objects of the Company”.

Applying this rationale, the bench held that, “From perusal of the record of Litigation also, it is observed that there are other parties too on the side of Appellant Company through which the Litigation may continue and be pursued. That the pending litigation against the Appellant Company cannot be the sole ground to seek its revival since the Litigation can still be carried on by the other contesting parties. That the Appellant Company has not brought anything on record, which could substantiate that the Appellant Company was in operation or was doing any significant business, at the time when its name was struck off from the register of RoC. Further, we are of the view that a company cannot be restored solely to litigate.” Thus the appeal was dismissed.

Click here to read the judgement

0

Stale claim is not to be adjudicated: High court of Patna

Inordinate delay on the part of the petitioners will lead to the non-interference of the court since entertaining a belated claim would only have the effect of inflicting hardship and inconvenience. The courts do not assist the tardy and the indolent and the lazy and the lethargic. This was held by Honorable Mr. Justice Mohit Kumar Shah in the case of Mukesh Kumar Singh vs. The State of Bihar through the Principal Secretary, Department of Road Construction Department [Civil Writ Jurisdiction Case No. 5809 of 2020] on the 12th of July, 2021 before the Hon’ble High Court of Bihar at Patna.

The brief facts of the case are, the petitioner, who is a contractor, was awarded contract work for construction of HL bridge (RCC) at Sariya and an agreement was entered into with the Executing Engineer, NH Division, Chapra on 13.03.2013 for construction of the aforesaid bridge wherein the time period stipulated for completion of the contract work was 16 months from the date of agreement. the bridge in question was constructed within the stipulated time period, however, subsequently, the Executive Engineer, directed the petitioner to undertake additional work whereupon the petitioner had performed variation work, but the same was not approved. It is stated that the entire work was completed in the year 2014 itself, however, the admitted outstanding dues are yet to be paid to the petitioner. The present writ petition has been filed for directing the respondents to forthwith pay the admitted dues along with earnest money and security deposit with respect to the contract work discharged by the petitioner as also to grant approval of the works already done by the petitioner apart from approving price variation.

The counsel for the respondent submits that, the present petition is barred by delay and latches inasmuch as the present petition has been filed after a huge delay of six years. It is further submitted that the then Executive Engineer, NH Division, Chapra had made variation in the work of BM and SDBC and prime coat without the approval of the concerned Chief Engineer, who is the competent authority for grant of approval. It is further submitted that the Assistant Engineer had examined the records and vide letter dated 07.08.2018, he has communicated to the Executive Engineer that as per the measurement book No. 338, payment has been made to the petitioner against his eight bills totaling to a sum of Rs. 3,68,53,379.00, for the work done by the petitioner. In fact, a sum of Rs. 41.07 lacs and Rs. 16.16 lacs have also been paid to the petitioner as secured advance against the 4th and 7th A/C Bills. The counsel for the petitioner submitted that the petitioner has refuted the aforesaid statements made in the counter affidavit by filing a rejoinder affidavit.

The learned judge heard the counsel for both the parties and observed the huge delay of about 6 years in filing the petition with no plausible explanation. The court relied on the judgement in Chennai Metropolitan Water Supply & Sewerage Board v. T. T. Murali Babu, reported in (2014) 4 SCC, 108, wherein it was held that, “Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the Lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but, in most circumstances, inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant — a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the Lis.”

The Court further found that the present writ petition involved disputed question of facts inasmuch as on the one hand the petitioner is claiming that admitted outstanding dues are due to be paid to him whereas on the contrary, the respondent State is making a claim that certain amounts are in fact recoverable from the petitioner. It is a trite law that disputed question of facts cannot be adjudicated in a writ petition. In this connection with this, the judges relied on the judgment in the case of AIR 1977 Patna 65 M/s Radha Krishna Agrawal & Ors. vs. The State of Bihar & Ors, wherein it was held that, “If those facts are disputed and require assessment of evidence of the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Art. 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, “prerogative” powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Art. 226 of the Constitution could be invoked.”

Applying the rationale in the two above cases, the present petition was dismissed on the grounds of inordinate delay and the court ruled that, “the petitioner has approached this Court after a huge delay of about six years for which no plausible explanation what-so-ever has been furnished by the petitioner. It is a well settled law that the High Court in exercise of its discretion does not assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner, the Court may decline to intervene and grant relief inasmuch as entertaining such a belated claim would only have the effect of inflicting hardship and inconvenience. It is equally a well settled law that stale claim is not to be adjudicated and deserve to be thrown out at the very threshold. Considering the facts and circumstances of the case and for the reasons mentioned hereinabove in the preceding paragraphs as also taking into account the well settled principle of law laid down by the Hon’ble Apex Court in a catena of decisions, as referred to hereinabove, this Court finds that since the present case involves disputed question of fact and the respondents have denied their liability arising out of the contract, the present writ petition, filed under Article 226 of the Constitution of India, is not maintainable, hence, the same stands dismissed.”

Click here to read the judgement

 

0

An employer should be sympathetic to an employee’s medical conditions when considering his representation against a transfer order: High Court of Uttarakhand

When an employee had filed representation against a transfer order due to a serious medical condition, the employer be sympathetic while considering the representation filed and the employee must not be transferred until the representation has been duly considered. This was held by a two member bench of the High Court of Uttarakhand consisting of Chief Justice Raghavendra Singh Chauhan and Justice Alok Kumar Verma in the case of Ravindra Kumar v State of Uttarakhand [Writ Petition (S/B) No. 250 of 2021] on 22nd July 2021.

The petitioner, Ravindra Kumar is an employee of respondent No.3. Through the present petition he challenged the legality of the transfer order dated 24th June 2021 passed by respondent No. 2, whereby the petitioner was transferred from Dehradun to Bageshwar on a promotional post. The petitioner pointed out that he was suffering from severe back problems which were clear from the medical reports indicating straightening of lumbar spine, degenerative changes in the form of osteophytes, disc desiccation and modic type II endplate changes at multiple levels. Additionally the petitioner also suffered from diffuse disc bulge and significant narrowing of bilateral neral foraminas. The petitioner also submitted a medical certificate from Government Doon Medical College Hospital, Dehradun dated 13th July 2021 which stated that he was suffering from Bronchial Asthma and was advised for bed rest till 25th July 2021.

It was contended that due to these medical conditions, the petitioner not only suffered immense pain but also inability to walk in a normal proper gait. The petitioner further contended that he had completed 58 years of service and he will have much difficulty in discharging his duties at Bageshwar where he would not have access to the necessary medical facilities. A representation had been filed by the petitioner, however despite the lapse of almost twenty days, it had not been considered by the respondents. For this reason the petitioner prayed that the respondents be directed to consider the petitioner’s representation in a sympathetic manner and to further ensure that he is posted only at a place where it will be easy for him to see the necessary medical facilities for his spinal problems.

Chief Justice Raghavendra Singh Chauhan came to the conclusion that “This Court directs respondent No. 3 to consider the petitioner’s representation, dated 01.07.2021, in a sympathetic manner considering the spinal problems being suffered by the petitioner. Till the representation of the petitioner is decided, the petitioner shall not be transferred to District-Bageshwar”.

Click here for the judgement

1 2 3 362
Open chat