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Cheque not having CTS authentication automatically would be invalidated in terms of the guidelines issued by the RBI : Jammu and Kashmir High Court

The RBI has categorically issued a notification wherein it is stated that Non-CTS cheques will not be presented before the Bank for encashment from December 31, 2013. This was upheld in the judgment passed by a single judge bench comprising of HON’BLE MS. JUSTICE SINDHU SHARMA, in the matter Ravi Kumar Sharma V. Yoginder Singh [IA No. 01/2016], dealt with an issue where the petitioner filed a petition seeking quashing of criminal proceedings in which cognizance under section 138 of the Negotiable Instrument Act, 1881 has been taken by the Sub-Judge/Special Mobile Magistrate, Jammu on the complaint filed by the respondent.

The complaint was filed by the respondent/complainant herein alleging that the petitioner borrowed a sum of Rs.2,50,000/- from the complainant and after some time, he issued a cheque drawn on Ellaquai Dehati Bank, Jammu for liquidation of the debts. The cheque was presented by the respondent/complainant for payment but the said cheque was dis-honoured vide memo.

The petitioner seeks exercise of the inherent powers of this Court under Section 561-A Cr.P.C, on the ground that the complaint is false and frivolous, because as per Income Tax Act, every loan beyond Rs.2,00,000/- could be advanced only through cheque and since the complainant has nowhere pleaded in his complaint that the amount was paid in cheque, therefore, it is a violation of Section 266 (ss) of the Income Tax Act and the stand of the respondent-complainant is that he paid Rs. 2,50,000/- in cash is false.

The complaint is liable to be dismissed because the cheque for which, the complaint was filed could not have been presented before the Bank and, as such, the same could not have been encashed also for the reason that it became obsolete by December 2013, therefore, it is not legally enforceable debt against which the complaint under Section 138 of Negotiable Instrument Act. Moreover, the cheque could not have been given by the petitioner herein on 05.02.2015 because the same had become obsolete and it is categorically mentioned in the statement duly made by the petitioner that the cheque was issued from Mr. Surinder Khanna in the year 2006-2007.

After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that the powers of this Court under Section 561-A Cr.P.C. are not to promote such litigation which is opposed to the concept of justice which is also a paramount importance because the petitioner has nowhere denied his signatures on the cheque, therefore, he claims to know so much about income tax and CTC, yet he issued a cheque, which was not CTC which borders on cheating and fraud, though the 4 CRMC No. 497/2016 respondent has not filed any case of cheating before the police against him, but the respondent appears only interested in recovery of his money and no harassment to the accused.

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Judgement reviewed by – Vaishnavi Raman

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A writ court under Article 226 is required to examine if the petitioner’s right conferred by part III of the Constitution of India: High Court Of Sikkim

The terms and conditions did not contemplate a hearing before the issuance of the order of termination. Such an opinion was held by The Hon’ble High Court Of Sikkim before  The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Ms. Manju Chettri Vs. State of Sikkim and Ors [W.P. (C) No. 34 of 2021]. 

The facts of the case were associated with an application under 226 of the Constitution of India. The writ petition was listed to admit the issuance of notice. The petitioner was aggrieved by the order passed by the 3rd respondent. The said respondent discharged the petitioner from her contractual service. The petitioner prayed for a declaration and stated that her contract termination was illegal and violated the principles of natural justice. She also prayed for restoring her service with all benefits. The counsel, Mr. J. B. Pradhan representing the petitioner stated that there is an endorsement to the Executive Chairman of the 3rd respondent to consider her case on the special ground. 

The Hon’ble Court stated that the petitioner had failed to prove that how the termination of the contract was illegal, arbitrary and violated natural justice. It’s evident that contractual service is governed by the terms and conditions of the contract. Therefore, according to clause 2 of the letter of appointment, initially the probation was for 6 months and can be extended upon her performance. All other T&Cs were duly signed by the petitioner. It seemed that the T&C were not looked at thoroughly before order issuance. 

Considering all the facts and submissions, The Hon’ble Court ruled out “In view of the above, this court is of the considered view that the writ petition is not maintainable. It is accordingly dismissed. However, the petitioner is free to make such representation to the 3rd respondent, if she so desires, to consider her case sympathetically.”

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Judgment reviewed by Bipasha Kundu

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Res-judicata in Section 11 of the CPC prohibits the Court from trying an issue that has been in issue in a former suit between the same parties: Orissa High Court

A decision made in the suit on a vital issue involved therein to operate as res-judicata in a subsequent suit between the same parties. Such an opinion was held by The Hon’ble High Court of Orissa before The Hon’ble Mr. Chief Justice B.P. Routray in the matter of Premlal Panda Vs. Panchanan Panda and Others [WA/61/2006]. 

The facts of the case were associated with property disputes. A judgment regarding such was challenged in the appeal. The properties of the four sons of Jagannath, among them Krushna Chandra died without any child. The dispute was concerned with the property of Krushna Chandra. A title suit was filed by Bhabagrahi, who claimed to be the adopted son of Krushna Chandra, the appeal by him was dismissed. An objection case was filed by Premlal praying for the recording of lands of late Krushna Chandra in his name claiming to be the adopted son of late Krushna Chandra. All the objection cases filed were disposed of by common judgment. Later, it was reported that Premlal was not the adopted son and that the claimed Adoption Deed was invalid and illegal. 

A revision petition was filed which was disposed of by the Joint Commissioner. It was stated that it was an injustice to bind the petitioner by applying principles of res-judicata. Res-judicata was not applicable to the consolidation case and that the Joint commissioner was in favour of petitioner Premlal, declaring him to be the adopted son. 

Considering all the facts and submissions, The Hon’ble Court stated that “… In the instant case the issue in question was substantially in issue in the previous suit, the competency of the earlier court in deciding the issue is not questioned and the parties in the list remains same, the decision of the former court shall definitely operate as res-judicata against all subsequent proceedings including the proceeding before Consolidation Authorities…  The legal position is unambiguous and the findings of the learned Single Judge are based on strong reasons. Accordingly, we do not find any ground to interfere with the same and the writ appeal is dismissed.”

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Judgment reviewed by Bipasha Kundu

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Witnesses should be examined by investigating officers before the magistrate : High Court Of New Delhi

The present petition has been filed against the Issue of a writ,  direction in the nature of Certiorari to reverse and set aside and quash the Penalty Order dated 16 July 2020 and few more issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE V. KAMESWAR RAO, in the matter MR. PEEYUSH TIWARI V. FOOD CORPORATION OF INDIA dealt with an issue mentioned above

In this case wherein the petitioner or The Charged Officer (‘CO’) was the Area Manager of the respondent’s District Office at Moga, Punjab. The respondent is an organization created and run by the Government of India. The petitioner filed this writ petition against the Order dated November 03, 2020, passed by the Board of Directors of the respondent by which the respondent rejected the appeal filed against the Order dated July 16, 2020, passed by the Disciplinary Authority (‘DA’).  Order dated November 03, 2020, confirms the Order of penalty of ‘Removal from Service’ dated July 16, 2020, passed under Regulation 58 of the Food Corporation of India (Staff) Regulations, 1971 by the DA of the Food Corporation of India (‘FCI’,).

Ms. Rashmi Gogoi, learned counsel of the petitioner that the Impugned Order dated November 03, 2020, which affirms the earlier order dated July 16, 2020, is without reliable evidence which could connect the petitioner with the Government Currency (‘GC’) notes recovered from the petitioner’s office and therefore the Impugned Orders amounts to a gross miscarriage of justice. It was  further mentioned by her that the respondent has erred in passing the impugned orders as the order of removal from service as well as the appellate order, are based on no evidence or proof.

According to the aforementioned investigation conducted at the office chamber of the petitioner, GC notes were obtained from the flush tank of the toilet and from the right-side drawer of the table amounting to a sum of Rs. 2,52,000/-.

In the present case, the CBI filed its Final Report dated October 11, 2018, wherein the petitioner was not named as an accused.Meanwhile Ms. Gogoi also stated that since the CBI officials in the Final Report could not link the petitioner to the GC notes apprehended in his office, the essentials of ‘Demand’ and ‘Acceptance’ of illegal gratification as required to be established under the Prevention of Corruption Act, 1988 (‘PC Act’) could not be established in the present case.

The petitioner aggrieved by the Penalty Order dated July 16, 2020, filed an appeal before the Board of Directors of the respondent under Regulation 68(ii) of the Regulations of 1971. However, the said appeal was rejected by the Board of Directors vide Order dated November 03, 2020. All submissions made by the petitioner in the said appeal were rejected, without ascribing proper reasons thereto.

Where in Ms. Gogoi submitted that the Impugned Order affirming the Penalty Order is patently incorrect because there is a clear reversing of the burden of proof and invoking incorrect presumption which is not justifiable in law and the petitioner was not caught red-handed demanding or accepting a bribe.

Mr. Manoj  that there is a prima facie case against the petitioner. In this regard, he drew the attention of this Court to the fact that GC notes aggregating to a sum of Rs. 2.52 lakhs were recovered from the flush tank of the toilet attached to his exclusive chamber and from the drawer of his table. The petitioner, as the Area Manager, was the head of the FCI District W.P.(C) 966/2021 Page 13 of 34 Office situated at Moga, Punjab. He also dealt with the issue of shifting of onus / burden of proof. In this regard, he submitted that in criminal proceedings, the burden is always on the prosecution to prove that the accused has committed the offence beyond reasonable doubt.

The court perused the facts and argument’s  presented, it was of the opinion that- “The charge against the petitioner, in this case, is not demanding / accepting the money as bribe, but the same is that the petitioner could not satisfactorily give any reasonable ground of the recovery of money from his office / toilet and from the table drawers and in the absence of any evidence that someone has planted the money to trap the petitioner of serious charges against him, the charges have been held to be proved. 59. Similarly, the case of Dnyaneshwar Laxman Rao Wankhede (supra) shall also be not applicable in the facts of this case as the said Judgment arises from criminal proceeding initiated against the respondent therein. In view of my aforesaid conclusion, I do not see any merit in the petition. The same is dismissed. No costs”.

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Judgment Reviewed by: Mandira BS 

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Careful scrutiny is called for in suits of specific performance to a greater degree since after the amendment to Section 10 of the Specific Relief Act: High Court of Delhi

It is no longer res integra that when the court is considering the question of maintainability under Order VII Rule 11 CPC, it has to consider whether clever drafting is creating illusions of a cause of action as held by the High Court of Delhi through the learned bench led by Justice Asha Menon in the case of Ashwani Kumar v. Aditya Mannohar Bhide and Ors. (CS(OS)33/2021, I.As.790/2021)

The Brief facts of the case are that the plaintiff/Ashwani Kumar has filed the present suit for specific performance of an oral agreement to sell a property in New Delhi. The four defendants are the owners of the suit property. It is to be noted that summons in the suit had not been issued as Ms. Malavika Rajkotia, learned counsel for the defendant No.1, appearing on advance notice, submitted that the suit was without cause of action and deserves to be rejected. In between, the parties were referred to the Delhi High Court Mediation and Conciliation Centre to enable them to work out an amicable settlement. However, the Mediation Centre reported that the efforts had failed.

The Hon’ble High Court held, “It was highlighted that an agreement to sell relates to valuable property and the intention of the parties to reduce the terms of the agreement into writing had to be kept in mind before determining the existence of an oral agreement which was binding. This case held that while an oral agreement could be enforced, but for such an enforceable oral agreement, the sale consideration, the time of completion of the sale deed and the mode of payment, were all vital terms on which the parties ought to have been in agreement to result in a binding oral agreement. Thus, it is clear on facts and in law, the plaintiff has no cause of action, as no oral agreement, as claimed, had ever come into existence and neither was such an oral agreement intended by the parties, as they repeatedly referred to a written agreement to sell in the emails on which the plaintiff relies. Without a binding agreement between the parties, there is nothing to enforce specific performance of. Thus, the present suit is rejected as disclosing no cause of action under Order VII Rule 11(a) CPC, along with the pending applications.

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Judgment reviewed by Vandana Ragwani

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