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The necessity for the Magistrate to exercise caution, specify the offense, and scrutinize effectively, the evidence brought on record prior to setting in motion of criminal law, was highlighted in a judgement by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU, before a bench consisting of Hon’ble Justice Mr. Rajnesh Oswal, in the Satidh Khajuria and Anr. vs. Jagjit Jolly and Anr. [CRMC No. 194/2012], on 31.01.22.

The petitioners have filed the present petition for quashing the criminal proceedings in complaint pending before the court of Sub-Registrar, Judicial Magistrate 1st Class Jammu and the order dated 30.06.2012 by virtue of which process has been issued against the petitioners. The facts were that Petitioner No.1 was working as a Chief Khilafwarzi Officer and petitioner No. 2 was working as Building Officer with Jammu Municipal Corporation in the year 2010. The respondent No. 1 filed a complaint under sections 166, 355, 427, 451, 503 read with section 506 of the Ranbir Penal Code, before the Court of learned Sub Registrar, Judicial Magistrate 1st Class Jammu and vide order dated 30.06.2012 the learned Magistrate dropped the proceedings against the then Commissioner and Joint Commissioner (A) of Municipal Corporation, Jammu but issued summons against the petitioners.

The Learned Counsel for the Petitioners, prayed for the quashing of the complainant and also the order dated 30.06.2012 on the following grounds, firstly, that the perusal of the order shows non-application of the mind by the learned Magistrate as the order does not disclose under which provision of laws, the petitioners have committed the offence; secondly, that the petitioners are the officers appointed by the Government and they cannot be removed from their offices without the sanction of the Government. The offences alleged to have been committed by the petitioners were while acting or purporting to act in the discharge of their official duties and as such, the learned Magistrate could not have taken the cognizance of the offences except with the previous sanction of the Government. No sanction has been obtained, as such, the order impugned is not sustainable; and thirdly, that it was the statutory function of the Commissioner to see that the nuisance was abated. Accordingly action was initiated for removing /abating nuisance. Under section 303 of the Municipal Corporation Act, when the Commissioner is of opinion that there is nuisance on any land or building, he can initiate action in terms of the section. In terms of section 391, no suit or prosecution can be entertained in any Court against the Corporation or against the Commissioner or against any Corporation Officer or other Corporation Employee or against any person acting under the control of direction of the Corporation or the Commissioner for anything which is in good faith done. Action against the respondent No.1 was being taken in good faith and admittedly it was an official act and as such in view of section 391 of the Act, the complaint against the petitioners is required to be dismissed.

The Learned Counsel for the Respondents, vehemently argued that the petitioners have committed the offence and as such, they are required to be proceeded and punished for commission of the same. He further submitted that there is nothing on record to demonstrate that the petitioners acted under the provisions of section 303 of Municipal Corporation Act and further that the petitioners are not entitled to any protection under the Code of Criminal Procedure.

Taking into account the facts, arguments, and relying on precedents, the High Court of Jammu & Kashmir and Ladakh at Jammu, noted that a perusal of the order impugned reveals that the learned Magistrate has not mentioned in the order impugned as to the offence for which the process has been issued against the petitioners and on this issue alone the order impugned is required to be set aside. It was observed that the learned Magistrate seems to have acted in a mechanical manner and without recording his satisfaction that the petitioners have committed a particular offence and are required to be proceeded for the same, has issued the process against the petitioners. It was held that the learned Magistrate has failed in his duty to consider the question of issue of process in accordance with law. It was further affirmed that criminal law cannot be set into motion as a matter of course. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. Thus, on this ground only, the order dated 30.06.2012 passed by Sub-Registrar, Jammu in complaint to the extent of issuance of process against the petitioners, was set aside and the matter was remanded back to the learned Magistrate for passing fresh orders in accordance with law laid down by Apex court in Pepsi Foods Ltd. vs. Special Judicial Magistrate, (1998) 5 SCC 749.

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Judgement reviewed by Bhargavi

CriminalJudgement Reviewed by sugam Anand Mishra  appeal is dismissed by the court, against the acquittal of accused for the offence, punishable under section 138 of Negotiable Instrument Act. This was upheld by High court of Karnataka through the learned bench led by Honourable MR. JUSTICE MOHA.MMAD NAWAZ in case of SRI T.R.NAGARAJU vs SRI SANNAHONNAPPA ( criminal appeal no. 1158 of 2018) on 15th December 2021.

Brief facts of the case are that the Complainant and the accused are known to each other. In the first week of October 2011, the accused for the purpose of his legal necessity requested the Complainant to pay a sum of Rs.3,00,000/- and therefore the complainant paid the said amount to him on 15.10.2011. The accused had agreed to repay the amount within two months but he didn’t keep his promise and became a defaulter. After several requests, accused issued a cheque bearing No. 523617 dated 20.12.2011 for the said amount, drawn on Canara Bank, Tavarekere, Sira Taluk, Tumkur District. The said cheque was presented to the bank as requested by the accused, through his banker namely Kaveri Kalpatharu Grameena Bank, Sira on 05.01.2012 for encashment. However, the said cheque was dishonoured on 14.01.2012 for funds insufficient. The same was informed to the complainant by his banker on 18.01.2012. Thereafter, of complainant issued a legal notice to the accused on 24.01.2012 by RPAD and inspite of receipt of the notice, accused failed to reply to the said notice and also failed to repay the amount mentioned in the cheque within the stipulated time and therefore the accused committed an offence under Section 138 of N.I. Act.

Then the defence taken by the accused Before the trial Court is that there was financial transaction Between himself and complainant’s parents. On 25.03.2009, he entered into an agreement as per Ex.D1with complainant’s mother namely Indramma and received A sum of Rs.1,10,000/-. In this connection, he issued the Cheque in question as security. He repaid the loan amount Of Rs.1,10,000/- to Indramma, but the cheque was not Returned, as such he issued Ex.D2- notice. Instead of Returning the said cheque, the same was presented by the Complainant. It is also contended that the complainant had No financial capacity to lend such a huge amount to the Accused and there was no transaction between the Complainant and accused.

Learned counsel for appellant has contended That it is not disputed by the accused that the cheque does Not belong to him and even the signature on the cheque is Also not disputed and therefore the presumption under Section 139 of N.I. Act has to be raised, when the Dishonour of cheque is established. He contends that Ex.D1 stated to be the agreement entered between the Accused and complainant’s mother has not been proved Since one of the signatory to the said agreement namely K.Adimurthy has not been examined by the defence. He therefore contends that the trial Court was not proper in acquitting the accused relying on the documents marked by the defence.

If it is proved that the cheque belong to the Accused and if the signature in the cheque is also not Disputed, then a legal presumption would arise in favour of The complainant that the said cheque has been issued by The accused in discharge of a debt or liability. However, The said presumption is rebuttable in nature. In the case On hand, the specific defence taken by the accused is that The cheque in question marked as Ex.P1 was issued as Security to complainant’s mother at the time of availing Loan of Rs.1,10,000/- from her and inspite of repaying the Said loan amount, the cheque was not returned and it was Misused by the complainant.

The defence has got marked Ex.D1. As per the Said document the accused received a sum of Rs.1,10,000/- from Indramma i.e., complainant’s mother On 15.05.2008. The accused has got examined DW.2 that is Wife of one K. Adimurthy who is a witness to the said document-Ex.D1. DW.2 in her evidence has stated that she is aware that there was financial transaction between the accused and complainant’s parents and in this connection Ex.D1 was executed on 08.04.2009 and her husband K. Adimurthy is a signatory to the said document. She has identified the said signature. In the cross-examination it is not disputed by the complainant the she is not the wife of K. Adimurthy. PW.1 has admitted in his cross-examination that the accused was doing financial transaction with his parents.

It is relevant to see that the cheque number Mentioned in Ex.D1 is the same cheque alleged to have Been issued by the accused to the appellant. Further, the defence has got marked Ex.D2, a notice issued By the accused to parents of the complainant for returning The said cheque No.523617. It is clearly mentioned in the Said notice that on 15.05.2008, the accused received a sum Of Rs.1,10,000/- from them for interest at 5% and at that Time the said cheque was given as security and inspite of Receipt of full amount the cheque was not returned. The said notice at Ex.D2 is dated 05.07.2010, which is much prior to the presentation of the cheque by the complainant. Hence, the complainant’s case that the accused approached him in the month of first week of October 2011 and requested for a sum of Rs.3,00,000/- and he paid the said amount on 15.10.2011 and in discharge of the said liability the accused issued the cheque in question appears to be doubtful.

After Considering all the facts, court decided to dismiss the appeal because the evidence cited by appealant is not sufficient, the accused has been able to rebut the presumption available in favour of the complainant and therefore, the findings recorded by the Trial Court cannot be said to be either perverse or illegal.

 

Judgement Reviewed by sugam Anand Mishra

The right to being heard is a fundamental right for any individual, violation of that can be termed a violation of a fundamental right. Refraining one from being heard is as good as going against the natural justice principles. This Judgment is pronounced by R. D. DHANUKA AND S. M. MODAK, JJ on 31.01.2022 in UCC INFRASTRUCTURE PVT.LTD.THROUGH ITS DIRECTOR MR.MONTY R. KHUSHALANI V. UNION OF INDIA, NEW DELHI, AND ORS.

The Central Government proposed the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (for short, ‘the said Scheme’) in the 2019-20 budget to assist taxpayers in resolving disputes arising under previous laws (service tax and central excise) that have been absorbed by the Goods and Services Tax (GST). Under the ‘voluntary category,’ the petitioner filed an Electronic Declaration Form under SVLRDS-1 on the CBEC website, declaring Rs.36,24,108/- as the tax dues for 1 September 2015 to 30 June 2017.

The petitioner received an order from respondent no.3 to reject the declaration as mentioned above. The petitioner was not entitled to select for the said Scheme since the inquiry against them had begun before they chose for it. The petitioner objected to the ruling, claiming that the declaration form supplied by the petitioner could not have been rejected. The respondents denied the petitioner’s application because the petitioner had been subjected to an inquiry and was not entitled to submit a declaration under the ‘voluntary category.’

Mr. Raichandani, learned counsel for the petitioner, drew our attention to the declaration forms filed by the petitioner and the impugned orders passed by the respondents rejecting the declaration forms filed by the petitioner because the petitioner was not eligible to opt under the said Scheme because an investigation had already been initiated and was pending against the petitioner. He claims that any inquiry started after the deadline is irrelevant and that the petitioner’s declaration forms could not have been rejected for this reason. In support of this argument, experienced counsel referred us to this Court’s Judgment in M/s. New India Civil Erectors Private Limited v. Union of India and Ors. in Writ Petition (Lodging) No. 989 of 2020, handed down on 12^th  March 2021.

Mr. Bangur, learned counsel for the respondents, drew the Judge’s attention to different paragraphs of the said Judgment in the matter of M/s. New India Civil Erectors Private Limited (supra), arguing that even though the summons was issued after the cut-off date, the respondents’ rights to continue the inquiry under Section 129(2)(c) of the said Scheme are not revoked. He contends that if the particulars supplied by the petitioner in the declaration are discovered to be false within one year of the issuing of the discharge certificate, it would be considered that the statement was never made, and proceedings will be started under the applicable indirect tax enactment.

After considering all the facts and after referring to other precedent cases, the Learned Judge concludes that while rejecting the petitioner’s declaration form, the respondents also denied him the right to be heard. If the respondents had given the petitioner a chance, the petitioner would have pointed out that the cut-off date could not be used to declare the petitioner’s application inadmissible. This Court believes that the contested ruling is a blatant breach of natural justice principles.

However, we are aware of the respondents’ powers under Section 129(2)(c) of the said Scheme, which allows the respondents to take appropriate action against the petitioner if the respondents discover any material particular in the declaration to be false within one year of the date of issuance of the discharge certificate. In this case, the respondents must continue as if the order had never been made, and procedures under the appropriate indirect tax enactment would be initiated.

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Reviewed by Rangasree