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Complaint must contain basic facts of mode and manner of the notice to drawer of Cheque. : Allahabad High Court

Given the above-mentioned settled legal position, it is clear that the complaint cannot be thrown at the threshold even if it does not make a specific averment regarding service of notice on the drawer on a specific date. The complaint, on the other hand, must include basic information about the mode and manner of providing notice to the drawer of the cheque”, said Justice Vivek Varma J of the Allahabad High Court in the matter of “Ganesh Babu Gupta v. State of UP and others [APPLICATION U/S 482 No. – 4656 of 2021].

The order was issued in response to the petition filed where the applicant’s learned counsel contended that the entire set of allegations is false. The cheque in question was not issued to pay off any existing debts or liabilities. In reference to the complaint, it was also argued that the date of service of notice was not disclosed. Until and unless the date of service of the notice is disclosed, there is no cause of action to initiate a prosecution under Section 138 of the Act.

Section 138 of the Act says :

“138. Dishonour of cheque for insufficiency, etc., of funds in the accounts: 

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: 

PROVIDED that nothing contained in this section shall apply unless- 

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. 

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and 

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

The court held in the following matter that applying the foregoing conclusions to the facts of this case, it must be concluded that the High Court clearly erred in dismissing the complaint on the grounds that there was no recital in the complaint that the notice under Section 138 of the NI Act was served on the accused. The High Court also erred in dismissing the complaint because there was no proof that the notice was served or that it was returned undelivered/unclaimed. That is a matter of proof.

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company of law

JIO haul Reliance Communication back in NCLT entreating audit reports: NCLT

It was first Started when the separate petition was filed against Reliance Infratel Ltd., Reliance Telecom Ltd., and Reliance Communications Ltd. (RCom) filed by the same Petitioner, namely Ericsson India Pvt. Ltd. u/s. 9 of IBC for having defaulted in paying Ericsson to the services rendered by it in terms of Managed Services Agreement (MSA) dated 25.01.2013 entered between these group of companies/Corporate debtors (collectively addressed as “Reliance”), in view of the same, Ericsson filed these Company Petitions for the ascertained claim made against each of these corporate debtors, for they collectively failed to pay Rs. 9,78,72,06,974 – the dues admittedly outstanding as n 31.03.2017, henceforth Ericsson filed separate company petitions against each of these three Reliance Companies for initiation of Corporate Insolvency Resolution process against RITL for defaulted in paying Rs. 427,21,40,509, against RTL for defaulted in paying Rs. 114,54,46,238, against RCom for defaulted in paying Rs. 436,96,20,227 as on 31.03.2017. Knowing well the Corporate Debtors not being common in these petitions, the facts and reliefs in respect to each of the companies are dealt with separately, but the submissions in these three Company Petitions being common.

ON December 3rd, 2020 the in their final order NCLT approved the resolution plan of Reliance Infratel Ltd. with the 100% voting of the committee of creditors, Lenders are likely to get around Rs 4,400 crore (more than 60%) and Reliance Jio some assets of the debt-laden telecom infrastructure firm, it was included in the resolution plan approved by the lenders that RCom and it’s subsidiary Reliance Telecom Infrastructure Ltd. will fo to UV Asset Reconstruction Company Ltd. and the tower unit Reliance Infratel will go to Reliance Jio for a total consideration of Rs 20,000 – 23,000 crore to be paid over a period of seven years.

In the months of April-May 2021  State Bank of India (SBI), Union Bank of India, and Indian Overseas Bank characterized records of the bankrupt telco and its units – Reliance Telecom and Reliance Infratel – as false. The claims came a year after a forensic review uncovered sketchy exchanges worth Rs 5,500 crore in the three Anil Ambani-drove Reliance Group elements. The test that saw exchanges between May 2017 and March 2018 discovered three enormous sections covered under countless others that the SBI-drove loan specialists’ gathering suspects could hide store redirection.

On May 27th, 2021, Reliance Jio through its unit, Reliance Project and Property Management Services, sought the audit details from Reliance Infratel, demanding the forensic audit reports to know as to why the three Indian banks had classified the accounts as fraudulent, for assessing that how it will impact the resolution plan.

“As it appears that the forensic audit report was available with the banks on 15th of October 2020. So, on the day when NCLT approved the plan which was the 3rd of December 2020, this report was available with the banks. They did not disclose it”. – Council of JIO before NCLT

In response, Reliance proceeds to I&B court against  RCom entreating disclosures of the forensic audit reports.

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Court cannot be a silent spectator when any party manifestly under estimates the valuation on estimation of relief: Bombay High Court

The value as determinable for computation of court fee and value for the purposes of jurisdiction shall be the same. No party to the litigation is given any absolute right to put any valuation whatsoever on such relief even though the estimation of relief and valuation submitted by the party is required to be ordinarily accepted. However, if any party deliberately under values the valuation on the estimation of relief, the court is not supposed to be a silent spectator thereto and has clear jurisdiction to interfere. A division bench of Kathawalla J and Milind Jadhav J, while adjudicating the matter in Maqbool Ansar v. M/s Devkaran & Co; [APPEAL (L) NO.3786 OF 2020] dealt with the issue of determination of pecuniary jurisdiction.

A suit had been filed by the respondent-plaintiff claimed himself to be the owner of suit premises. That the Plaintiff had permitted Respondent Nos. 4 and 5 / original Defendant Nos. 4 and 5 to occupy the suit premises for the purpose of carrying on their respective businesses. According to the Plaintiff, sometime in the year 2018, Respondent No. 2 / original Defendant No. 1 attempted to forcibly trespass upon the suit premises, claiming that he had purchased the same. Thereafter Defendant No. 1 once again tried to illegally take possession of the suit premises with the help of Defendant No. 2. This led to Defendant Nos. 4 and 5 filing a police complaint with the Powai Police Station, and a First Information Report (FIR) came to be registered against Defendant Nos. 1 and 2. Subsequently, upon Defendant Nos. 1 and 2 and giving assurances that they would not interfere with the suit premises, Defendant Nos. 4 and 5 agreed for quashing of the FIR. Defendant Nos. 1 and 2 filed Writ Petition before this Court for quashing the FIR, in which they admitted that Defendant No. 1 was not the owner of the suit premises. According to the Plaintiff, Defendant No. 2 with the help of his goons attempted to forcibly take possession of the suit premises.

The Court upon considering the aforesaid facts dismissed the appeal and stated that “A perusal of the aforesaid extracted portions of the plaint show that the suit is not merely for cancellation of the Agreement for Sale between Defendant Nos. 1 and 2. The same is for a declaration of the ownership right, title and interest in the suit premises which the Plaintiff claims solely unto itself. The plaint has narrated several instances of how Defendant Nos. 1 and / or 2 have attempted to claim title to the suit premises adverse to that of the Plaintiff, as well as instances of Defendant Nos. 1 and / or 2 attempting to take over forcible possession of the suit premises from Defendant Nos. 4 and 5. The Plaintiff has stated that the proceedings is a suit for land in respect of the suit premises. Plaintiff has also prayed for permanent injunction against the Defendant Nos.1 and 2 from in any manner relying upon the agreement for sale and disturbing the possession, right and interest of the Plaintiff in the suit premises. In view of the above discussion, we are unable to accept the Appellant’s contentions that the present suit is principally one for cancellation of the agreement for sale or that the other reliefs in the suit are consequential or incidental to the same, or that the suit must be valued”

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Pendency of Arbitration proceedings cannot be a ground to quash the charge sheet U/S.482 CrPC: High Court of Karnataka

It is an allegation that during the pendency of the arbitration appeal, the incident of criminal trespass was taken place and caused the mischief. When such being the averments made in the complaint and when the parties have entered into the joint development agreement and payment was made and so also when the specific allegations are made that they have illegally entered into the property and caused the loss by dismantling the POTA cabin, the Court has to look into the averments in the complaint in order to invoke Section 482 of Cr.P.C. MRS.G.CHITRA POORNIMA and Ors V. STATE BY INDIRANAGAR POLICE STATION And Ors [CRIMINAL PETITION No.1244 OF 2020] in the High Court of Karnataka single bench consisting of JUSTICE H.P. SANDESH.

Facts are that the petitioner’s husband is the owner of the property, he had executed a GPA in the respondent’s favor to proceed with joint development and construction of a Mall. Disputes arose with respect to the land between the parties, which led to arbitration proceedings. Petitioner has filed petition U/S.482 of Cr.P.C r/w Arti 226 of Constitution to quash the FIR for the offense punishable U/S 427, 506, 120B, 420, 435, 447 r/w 34 of IPC, which was filed by the respondent.

The counsel for the petitioner contended there was a delay in lodging the complaint. The arbitration award was also challenged after several years. It is a clear case of civil dispute between the parties. he relied upon the decision of the Apex Court in the case of Dalip Kaur and others v. Jagnar Singh and another.

The counsel for the respondent contended that the civil dispute has not yet reached its finality and is pending before the City Civil Court. The issue involved between the parties is not covered by the arbitration. The complaint, wherein a specific allegation is made that a criminal offence and prima face criminal culpability of the petitioners has been made out in the complaint.

The Court made reference to the Apex court judgement in  Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra and Others, wherein it was observed that, “on perusal of the complaint if it discloses the prima face offences that are alleged against the respondents, there cannot be any quashing of the proceedings. The correctness or otherwise of the said allegations has to be decided only in the trail.”

The Court also made reference to the Apex court judgement in Priti Saraf and another v. State of NCT of Delhi and another, wherein it was observed that, “mere pending of Arbitration proceedings cannot be a ground to quash the charge sheet and set aside the order of High Court in quashing the charge sheet.”

Considering the law and the facts of the case the court held that, the petitioner had in the present case, sought the quashing of the FIR and the Investigating Officer has to probe the crime as per the procedure established under the Code of Criminal Procedure. There is no merit in the petition to invoke Section 482 of Cr.P.C. to quash the proceedings. Thus dismissing the petition.

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Police personnel cannot be appointed as Jail Superintendents: High Court of Uttarakhand

The purpose of Police is very different from that of Jail Superintendents and as a natural corollary, their training and psyche are poles apart. Hence the former can’t take the position of the latter. This was decided in the case of Sanjeev Kumar Akash v. State of Uttarakhand & Ors [WRIT PETITION PIL No.25 of 2020] by Chief Justice Sri Raghvendra Singh Chauhan and Justice Alok Kumar Verma in High Court of Uttarakhand.

The facts of the case are that the State Government considering the vacancy in the positions and the difficulty in running the jails properly gave the additional charge of the office of the Senior Superintendent to the officers of the Police department on an ad hoc basis in a jail in Sitarganj. This according to the petitioner is against the Uttar Pradesh Jail (Group A and B) Service Rules, 1982. Hence, a Public Interest Litigation was filed before the Court.

The petitioner contended that the training and the psychology of the police personnel and the prison personnel are poles apart. So, to confuse these two classes would be violative of fundamental philosophy. Secondly, Rule 3(k) of Uttar Pradesh Jail (Group A and B) Service Rules, 1982 defines the post of Superintendent, District Jail to mean “the whole time
Superintendent”. On the other hand, the respondent contended that the post of the Inspector general of prisons is occupied by the IPS so that gives way to the police officer to be appointed as a superintendent.

After analyzing the facts and the contentions by both the parties, the Court specifically considered Rule 75(2) of the Nelson Mandela Rules which states that “before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences.

The Court referred to the Uttar Pradesh Jail (Group A and B) Service Rules, 1982 and said that A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment (fifty percent), or by promotion (fifty percent). The Rules do not permit an ad-hoc appointment from any other service, much less the police service. Therefore, the post can be filled up either directly from candidates from the open market, or from the post of Deputy Superintendents/Jailors having a work experience of minimum of five years.

Furthermore, it said that “It is a settled position of law that once a procedure has been established by law, it cannot be circumvented from. Therefore, merely because the post of Inspector General of Prisons, and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre, it does not empower the State to fill up the post of the lower echelons by posting police personnel or the post of Senior Superintendent/Superintendent of Jail.” Hence, it was held that the appointment of the police personnel, by the impugned orders, is clearly illegal.

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