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The provisions of DVAT Act with regard to grant of interest would be applicable to the case of the petitioner: Delhi High Court.

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CASE TITTLE: RASHTRIYA TRANSPORT CORPORATION V COMMISSIONER OF DELHI GOODS AND SERVICE TAX & ANR.

CASE NO: W.P.(C) 11463/2023

ORDER ON: : 27 May 2024

QUORUM: . JUSTICE SANJEEV SACHDEVA, JUSTICE RAVINDER DUDEJA

FACTS OF THE CASE:

The facts leading to the present appeal in question is that the Petitioner was engaged in the business of transporting goods. A survey was conducted at the godowns of the Petitioner by the Officers of the Department, A notice was issued calling upon the relevant records stated therein. Default Assessments were framed on imposing tax of Rs. 4,91,096/- and penalty under section 86 (19) and under Section 86 (14) amounting to Rs. 4,91,096/- and Rs. 50,000/- respectively. The assessment was challenged before Objections Hearing Authority which was rejected  After the said order, Petitioner deposited disputed amount of tax penalty vide challans. Being aggrieved, Petitioner preferred appeals before the Delhi Value Added Tax [“DVAT”] Appellate Tribunal but the same were partially allowed, whereby, only the penalty imposed under Section 86 (19) was set aside. Petitioner preferred VAT Appeal before this Court the matter was remanded to the Tribunal for deciding afresh. Accordingly, the appeals were reconsidered and decided in favour of the petitioner vide order dated 10.05.2023, whereby, assessments framed by Assessing Authority and the order passed by OHA were set aside. Petitioner preferred Writ Petition (C) No. 8667/2023 before this Court seeking refund of the amount deposited with interest and the same was disposed of, directing the Respondents to decide the claim of petitioner within four weeks the entire deposited amount was refunded along with interest calculated from the date of order of the Appellate Tribunal at the rate of 6% per annum. Challenging the order petitioner again approached this Court and this Court set aside the order dated and directed the Authority to reconsider the issue of interest and pass a speaking order thereto. After hearing the Petitioner, Respondents passed a speaking order rejecting the contentions of the petitioner of higher rate of interest than that mentioned in the Delhi Value Added Tax [“DVAT”] Act as also grant of interest from the date of deposit. The interest on the penalty imposed under Section 86 (19) of Rs. 4,91,096/- was calculated from 26.08.2021 i.e. the date of order by which the said penalty was set aside by the learned Tribunal, while the interest on the tax and penalty under Section 86 (14) was calculated from 10.05.2023.Hence this petition.

LEGAL ISSUES:

whether the provisions of DVAT Act with regard to grant of interest would be applicable to the case of the petitioner, who admittedly is not a dealer but a transporter, and was not engaged in trading of goods and what would be the rate of interest and the date from which such interest is payable?

LEGAL PROVISIONS:

Sections 38 of the DVAT Act, Deals with refunds

Section 42 of the DVAT Act, deals with Intrest.

CONTENTIONS OF APPELLEANT:

The appellant through their counsel has submitted that Delhi Value Added Tax Act Appellate Tribunal has concluded that petitioner is not a “dealer” in terms of provisions of DVAT Act, 2004 and accordingly the provisions of DVAT Act are not applicable in the present case. That being so, the sum of Rs. 10,32,138/- deposited by the petitioners with the respondents was neither a tax nor a penalty for violation of any provision of DVAT Act.the counsel further submitted that Such amount was illegally retained by the respondents for over a period of 17 years without authority of law, and therefore, respondents are bound to compensate petitioner by way of interest at the market rate.It is submitted that impugned order insofar as it restricts rate of interest as prescribed under the DVAT Act is liable to be set aside/quashed. The counsel has also placed reliance on judicial decisions, in support of his contentions

CONTENTIONS OF THE RESPONDENT:

The respondent through their Counsel has argued that the term, employed in Sections 38 and 42 of the DVAT Act is “person” and not “dealer”, which would certainly include within its fold any person including the transporter and, therefore, to give a restricted meaning to the word, “person”, occurring in Sections 38 and 42 of the DVAT Act, The counsel further submitted that it would be contrary to the intention of the legislature, which has explicitly and consciously employed the term, “person” and not “dealer” and if the contention of the petitioner is accepted, it would be tantamount to doing damage to the literal meaning of the said provisions as well as intention of legislature in enacting the said provisions.the counsel further argued that Sections 38 and 42 have a larger scope to include persons other than just the dealers and, therefore, as per the said provisions, the rate of interest liable for the refund is annual rate notified by the Government  at 6% p.a. counsel further submitted that amount of tax and penalty was deposited by the petitioner only after the objections filed by him were rejected by the OHA and, therefore, the same are akin to the pre-deposit before filing the appeal. Learned Standing Counsel has also placed reliance on decision of Allahabad High Court in Ebiz.com Pvt. Ltd. Vs. Commissioner of Central Excise, Customs & Service Tax & Ors. MANU/UP/3167/2016, wherein, it was held that any amount received by revenue as deposit or pre-deposit i.e. unauthorisedly or under mistaken notion, cannot be retained by revenue since it has no authority in law to retain such amount and it must be refunded with interest, however, the interest was ordered to be refundable from the date after three months of passing of order by Commissioner till the amount is actually paid. The Counsel has thus submitted that writ petition is devoid of any merits and is liable to be dismissed.

COURTS ANALYSIS AND JUDGEMENT:

The court on hearing both the counsel, observed that the use of word “person” instead of “dealer” reflects that the intention of the legislature is to include the persons other than the dealers for the benefit of grant of refund and interest under Section 38 & 42 of the DVAT Act. Therefore, the court opined  that the provisions of Section 38 & 42 of the DVAT Act would be applicable to the petitioner/transporter.Also the court With regard to the contention of learned counsel for petitioner regards the payment of interest from the date of deposit, the decisions in the case of Roadmaster (supra) and Tata Chemicals (supra) are not applicable in the present case inasmuch as the decisions in both the cases were rendered in the context of Income Tax Act where there is a specific provision under Section 244(1)(A) for the payment of interest from the date of payment of excess tax by the assessee, while there is no corresponding provision in DVAT Act. Similarly, in the case of Redihot Electricals (supra), the Excise Authority had collected the amount as tax without authority of law and therefore the Court had granted interest at the rate of 12% per annum from the date of collection of the amount till the date of actual payment. In the Central Excise & Salt Act, 1944, there was no provision for the grant of interest on the refunded amount. However, in the DVAT Act, there is a specific provision under Section 42 for the grant of interest on the refund. Hence, the judgment in the case of Redihot Electricals (supra) is also not applicable in the present case.the court further opined that Section 42 of the DVAT Act provides that the interest shall be computed from the date when refund was due to be paid to the person until the date of refund. Admittedly, the refund became payable consequent to the orders passed by the DVAT Appellate Tribunal. The interest therefore shall be computed from the date(s) of the orders passed by the DVAT Appellate Tribunal Admittedly, statutory rate of interest is 6% by virtue of notification  The Tribunal had set aside the notice of penalty amounting to Rs. 4,91,096/- under Section 86(19) and, therefore, interest on such amount shall be computed and payable from 26.08.2021 at the rate of 6% p.a. till the date of refund. Vide subsequent orde, the Tribunal had set aside the payment of tax of Rs. 4,91,096/- and penalty of Rs. 50,000/- imposed under Section 86(14). Therefore, interest on such amount shall be payable from 10.05.2023 at the rate of 6% till the date of refund. Hence from the aforesaid, The court opined  that the GSTO has rightly computed the interest vide its order dated 31.07.2023, and therefore, the writ petition is devoid of any merits.the court further ordered that the Revenue will pay the interest  within four weeks of receipt of copy of this judgment. Therefore the court dismissed the present pettition.

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Delhi High Court: Extra judicial confessions are weak pieces of evidence, it is incumbent on the Courts to exercise extra caution while examining the same

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CASE TITTLE: ROSHAN  versus THE STATE (GOVT OF NCT OF DELHI)

CASE NO: BAIL APPLN. 2478/2023

ORDER ON: 20th May, 2024

QUORUM:  JUSTICE AMIT MAHAJAN

FACTS OF THE CASE:

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 for seeking bail in FIR No. 321/2016, registered at Police Station Gokal Puri, for the offences under Section 363 of the Indian Penal Code, 1860 (‘IPC’).

The facts leading to the present appeal in question is that, The FIR was registered on a complaint made by the complainant alleging that his 3 year old daughter (victim) had taken some money from the wife of his younger brother (the applicant) and gone out to eat some street food. It was alleged that the victim did not come back and despite all efforts, the complainant was unable to find her later, information was received that a quarrel had happened at  Indra Vihar, Mustafabad, Delhi. Thereafter, information was received that a dead body had been recovered. It is alleged that the police found that there was no quarrel, but the body of the victim had been recovered from the drawer of the bed of the complainant’s brother, namely, Aftab Alam, at the aforesaid address. It is the case of the prosecution that the complainant and his brother were living in the same house with their families. It is alleged that the applicant was upset due to the alleged affair between the mother of the victim and her husband. It is alleged that on the date of the incident, the victim was sleeping and the other family members had gone out, when the applicant murdered the victim out of anger. It is alleged that the applicant disclosed that the applicant closed the mouth of the victim and then tied her mouth with a dupatta. Thereafter, the applicant allegedly threw the victim in her bed. Later, the applicant allegedly lied that the victim was out playing with other kids on the street. It is alleged that the body of the victim was discovered when the other members of the family noticed the stinking smell coming from the room of the applicant.

LEGAL PROVISIONS:

under Section 439 of the Code of Criminal Procedure, 1973, talks about the power of High Court or Court of Session to direct, any person accused of an offence and in custody, be released on bail

CONTENTIONS OF APPLICANT:

The applicants counsel submitted that the applicant has clean antecedents and has been falsely implicated in the present case. the counsel submitted that the father of the applicant had made complaints to the concerned authorities regarding her false implication but no enquiry was done in that regard.counsel further contented that there is no eye witness in the present case and the entire prosecution story is based on circumstantial evidence. counsel also  submitted that the testimony of the witnesses that have been examined are contradictory. Further, the dead body was not recovered at the instance of the applicant. The same was recovered from the then husband of the applicant, who has been discharged without examination. Counsel also submitted that the husband of the applicant divorced her while she was in custody and the applicant was released on interim bail by a Coordinate Bench of this Court by order and her interim bail was extended from time to time. Counsel further submitted that the applicant was granted interim bail on account of HPC guidelines by the learned Trial Court vide order as well and the applicant had surrendered on time on both instances and had never misused the liberty. Counsel further submitted that only 18 out of 30 witnesses have been examined yet and the formal witnesses are yet to be examined however, the applicant has spent more than five years in custody and the trial is likely going to take a considerable amount of time.

CONTENTIONS OF THE RESPONDENT:

The Additional Public Prosecutor appearing for the State strongly opposed the grant of any relief to the applicant. Counsel submitted that the offences involved in the present case are heinous in nature. and the victim was last seen with the applicant. The counsel further submitted that the nominal roll of the applicant indicates that the jail conduct of the applicant is non-satisfactory and the applicant broke jail rules and was involved in a number of other offences while in custody, including her alleged involvement in jail

COURTS ANALYSIS AND JUDGEMENT:

The court on considering both the sides, observed that the allegations in the present case are grave and heinous in nature. The court also opined that Extra judicial confessions are weak pieces of evidence, whereby it is incumbent on the Courts to exercise extra caution while examining the same, At this stage, it cannot be denied that there is no direct evidence against the applicant and she has been implicated solely on the basis of the circumstances allegedly leading to the death of the victim, such as the victim having been allegedly last seen with the applicant. It is pertinent to note that the applicant admittedly used to stay in the same house as the victim. It is also not denied that the allegations in the present case are only made by the family members of the victim and the ex-husband of the applicant.The court observed that There is no eye-witness to the commission of the alleged offence.the court also observed that, It is settled law that when the case is based solely on circumstantial evidence, the chain of circumstances has to be so complete that it leaves no reasonable ground for any other conclusion except for the hypothesis of guilt of the accused person.The allegations along with the defences would be considered during the course of the trial. The applicant, being a woman, is undeniably entitled to special consideration while dealing with the question of bail, in terms of the proviso to Section 437(1) of the CrPC. Therefore, the court  In view of the above, directed to  released applicant on bail on furnishing a bail bond with one surety of the like amount, subject to the satisfaction of the Trial Court/Duty MM/ Link MM, on the  conditions that The applicant shall provide the address where she would be residing after the release and shall not change the address without informing the concerned IO/ SHO,  The applicant shall appear before the learned Trial Court as and when directed . The applicant shall under no circumstance leave the country without the permission of the Court, The applicant shall, upon her release, give her mobile number to the concerned IO/SHO and shall keep her mobile phone switched on at all times.In the event of there being any FIR/ DD entry/ complaint lodged against the applicant, it would be open to the State to seek redressal. The  court further allowed present application in the aforesaid terms.

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Delhi High Court Rulings: the eventual consequence of any penal sanction should be to reform any individual, instead of shutting him out by putting him inside for life.

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CASE TITTLE: BILAL AHMAD MIR ALIAS BILAL MIR ALIAS BILLA AND ORS versus NATIONAL INVESTIGATING AGENCY NEW DELHI

CASE NO: CRL.A. 53/2023 And others

ORDER ON: 20.05.2024

QUORUM: . JUSTICE SURESH KUMAR KAIT And JUSTICE MANOJ JAIN

FACTS OF THE CASE:

The facts leading to the present appeal in question is that, All the appellants were arraigned as accused in case RC No.08/2019/NIA/DLI. the Trial Court ascertained the charges, they all pleaded guilty. They were accordingly convicted for various offences under IPC and UAPA, Such order, related to quantum of sentence, is under challenge in the present petition. However, with respect to appellant Ishfaq Ahmad Bhat (A-7), when the appeal was filed under Section 21 of the National Investigation Agency Act (NIA Act), he challenged the legality of conviction as well, contending that the Trial Court had proceeded on the alleged plea of guilt in a mechanical manner. According to him, the conviction was not sustainable on the basis of such plea of guilt. Fact, however, remains that during course of consideration of the appeal, additional affidavit was filed stating therein that the appellant was no longer desirous of challenging his plea of guilt and consequent conviction and that he was confining his appeal to the extent of sentence qua those offences for which he had been given life sentence, Thus, the scope of all the aforesaid appeals is very limited in sphere and only the aspect related to the extent or legality of the sentence is required to be seen, the prayer being that they be given minimum sentence for offence under Section 121A IPC and in relation to appellant Muzzafar Ahmed Bhat, for offence under Section 23 UAPA as well. A specific application in terms of Section 229 Cr.P.C. was also moved seeking to plead guilty, stating therein, that the accused were remorseful for the alleged acts and voluntarily seek to plead guilty, without any pressure or coercion and that they had also duly understood the consequences of their pleading guilty to the different charges. Trial Court, rightfully so, gave them time for reflection and when the matter was taken up they, again, persisted in their such plea. The charges were framed on and the contents thereof were duly explained, separately to all of them, with the prescribed sentences under the law. After understanding such accusation, contents of charges and the sentence prescribed for such offences, the appellants pleaded guilty to all such charges. It was in the aforesaid backdrop that all the appellants have been convicted and sentenced. Since the contentions raised before the court are identical in nature and since all these appeals emanate from same case,the court  disposed of all these appeals by this common judgment.The Appellants, who have spent almost four years in prison, challenge the legality and extent of the sentence with respect to those offences for which they have been given maximum sentence i.e. imprisonment for life, Hence, this appeal.

LEGAL ISSUES:

Whether the quantum of sentence, awarded by the trial court is unduly harsh, as contended by the appellants?s

LEGAL PROVISIONS:

Section 23 UAPA talks about Enhanced penalties.

Section 121 IPC talks about waging, abetting or attempting to wage war against government

Section 302 IPC, talks about punishment for Murder

Section 21 of the National Investigation Agency Act

Section 229 of Cr.P.C. talks about conviction on plea of guilty

Section 375 Cr.P.C. which specifies that if any accused pleads guilty and is convicted on the basis of such plea of guilt, there shall be no appeal, except as to the extent or legality of the sentence.

CONTENTIONS OF APPELLEANT:

The appelleant through their counsel contented that, Sentencing requires application of mind to several factors, including possibility of reform, family circumstances etc. The impugned order of sentence shows no reasoning, except for the seriousness of the offence. The counsel further submits that It, nowhere, talks about any possibility of reform, It does not take into consideration their young age, their antecedents, their background and have been sentenced to life, thereby jeopardizing any chance of their rehabilitation and joining mainstream, the counsel further submits that,The impugned order on sentencing merely refers to, but does not analyse, the nature of conduct in jail or socioeconomic factors, The grant of maximum punishment, given under Section 121A of the IPC, is nothing but perverse and absurd. Even in terror cases, a distinction needs to be drawn between a mastermind and a mere follower, and the latter should be dealt with more leniently. The counsel further contented that Even as a gesture of normalisation in Kashmir affairs, it would have been just and proper to have awarded less than the maximum, particularly when no actual violence had occurred and it remained a case of mere conspiracy, with no terror act committed for which they could have been made liable. 

CONTENTIONS OF THE RESPONDENT:

The respondent through their counsel, Sh. Gautam Narayan, asserted that The limited scope of the present appeal is the reduction of sentence but there is no ground to interfere as the Ld. Special Judge has taken into account all the relevant factors at the stage of sentencing, Appellants were highly radicalised Over Ground Worker (OGW) of Jaish-e-Mohammed (“JeM”), a proscribed terrorist organisation under the First Schedule of the UAPA which had carried out several terrorist acts in India, Special Judge had requisitioned the socio-economic impact report pertaining to the appellants and noted both mitigating factors, namely, their age and their family background and gravity and enormity of the accusation. Apart from Section 121A, IPC, the Special Judge has not imposed maximum sentence for any other offence, It was not a case for showing any undue sympathy which would have rather sent a wrong signal Keeping in view the twin-objectives of deterrence and correction, the reduction of the sentence might result in their joining militancy, once again, after being released.

COURTS ANALYSIS AND JUDGEMENT:

The court on hearing both the sides, observed that there were many offences which attracted life sentence but despite that learned Trial Court awarded sentence of rigorous imprisonment of five years for most such offences. The court also Refered to sentences imposed for commission of offences under Section 18, 18B, 19 of UAPA and Section 4 of ESA. As regards Section 122 IPC, though the maximum sentence was life, the concerned appellant has been awarded RI for 10 years, besides fine and Obviously, the issue seems to be concerning Section 121A IPC and Section 23 UAPA. The court further observed, that the appellants had pleaded guilty at the first available opportunity, without any expectation.further court observed that There is nothing on record which may suggest that they are beyond redemption, The court also observed that It is strongly believed that, more often than not, the eventual consequence of any penal sanction should be to reform any individual, instead of shutting him out by putting him inside for life. Unfortunately, there are no sentencing guidelines which may assist court in selecting the most appropriate sentence, minimum or maximum or one falling between the two. The court further observed that the Trial Court has not given any specific reason as to why it was awarding maximum punishment for offence under Section 121A IPC and for Section 23 UAPA, the court also observed that in the present case, ends of justice would be met if instead of maximum of life sentence, appellants are punished with rigorous imprisonment for ten years, which punishment is just a step below. Similarly, with respect to the Section 23 of UAPA, minimum sentence is five years which may extend to life and taking stock of the factual matrix presented before us and in view of foregoing discussion, ends of justice would be met if such sentence is also reduced to rigorous imprisonment for ten years. Consequently,the court hereby disposed of all the appeals with modification that for offence under Section 121A IPC, appellants are directed to serve sentence of rigorous imprisonment for ten years with fine of Rs. 2,000/- and to further undergo SI for a period of one year in case of default of payment of fine. In relation to Crl. A. No. 56/2023 CRL.A. 53/2023 & four other connected appeals pertaining to appellant Muzaffar Ahmad Bhat, besides above modification, sentence with respect to Section 23 UAPA is also modified and is reduced to rigorous imprisonment for a period of ten years with fine of Rs. 2,000/- and to further undergo SI for a period of one year in case of default of payment of fine. The court further held that, Other terms and monetary imposition of fine for other offences for all the appellants shall remain unaltered.The court hereby disposed off Appeals in aforesaid terms.

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Delhi High Court no requirement for separate notice to each of the Trustees of the accused to make them Vicariously liable to be proceeded against in terms of Section 138 Of the NI Act

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CASE TITTLE:HARPREET SAHNI & ANR. V. SHRICHAND HEMNANI and Anr

CASE NO:CRL.M.C. 6094/2022 & CRL.M.A. 23877/202

ORDER ON:15.05.2024

QUORUM:JUSTICE NAVIN CHAWLA

FACTS OF THE CASE:

The above  petitions have been filed under Section 482 of the Code Of Criminal Procedure, 1973 challenging the Order dated 20.12.2019 passed by the learned Metropolitan Magistrate, Delhi  herein, under Section 138 of the Negotiable Instruments Act, 1881, As these petitions had common questions of law and facts, these are being considered and disposed of by Way of this common judgment.

The facts leading to the present petition in question is that The above complaint cases have been originally filed by the respondent, It was alleged That the accused nos.3 to 10 came in contact of the Respondent and represented and assured them about their position,based on their representation, the respondent have extended loans to the accused, in the joint name of accused no.1-Mother’s Pride Punjabi Bagh and the accused no.2-Presidium Eduvision Trust. It is alleged that the accused were to pay interest at the rate of 19.5% per annum on the loan amount for the period of the loan. It is alleged that till the month of June, 2018, accused nos.1 to 10 paid interest on the said loan, however, thereafter they defaulted in payment of interest,  It is claimed that on 01.12.2018, when the respondent deposited the cheques issued by the accused nos.1 to 10 for repayment of the loan, the same were dishonoured with the remark „Funds Insufficient‟. It is averred that the respondent  thereafter issued respective legal notices  to the accused nos.1 to 10 to repay the cheque(s) amount, however, the same was not paid. The respondent in the original complaint also pleaded and made similar allegations,however  It appears that in the pre-summoning evidence, the respondent(s) summoned the Manager of Axis Bank, Rajouri Garden, Delhi as a witness before the learned Trial Court to Give the pre-summoning evidence on the Bank Account Maintained by the accused no.2 therein, that is, Presidium Eduvision Trust, with the said bank. It is stated that the official from the Axis Bank appeared before the Learned Trial Court and placed all the account related records,The respondent(s) claimed  that for the first time, the respondent(s), from the Trust Deed and the Account Opening Form of the Presidium Eduvision Trust, came to know That the said Trust had three Trustees, that is, the petitioners Herein and the accused no.9 in the Complaint cases. The Respondent(s) claimed that these Trustees were fully involved in The subject transaction, however, had concealed that they were The Trustees of the accused no.2 Trust. The respondent(s) then filed an application under Section 319 of the Cr.P.C. praying for impleadment of the petitioners as additional accused in the Complaint cases. The respondent(s further claimed that as notice under Section 138 of the NI Act has been served on the Trust through its Trustees, hence the requirement of Proviso (b) to Section 138 of the NI Act hasbeen duly complied with, by the respondent. The said application was allowed by the learned Trial Court by the Impugned Order, and the Trust and its three Trustees have been summoned as accused in the Complaint Cases filed by the respondent. .The petitioners have filed the present petitions being aggrieved Of the said Order which summons the petitioners as accused in the Above Complaint Cases.

LEGAL PROVISIONS:

Section 138 of the NI penalizes the dishonour of any cheque which has been issued in the discharge of the whole or part of “any debt or other liability”

Section 141 of the NI Act talks about the offences by company

CONTENTIONS OF PETITIONER:

The petitioners through their counsel  submits that for Maintainability of a complaint under Section 138 of the NI Act read With Section 142 of the NI Act, service of notice under Proviso (b) to Section 138 of the NI Act on the accused is mandatory. The counsel further submits That in the Complaint Cases, admittedly, the alleged demand notice Dated 28.01.2019 was not addressed to the petitioners in their Individual capacity. Counsel further  submits that, therefore, the complaint(s)Against the petitioners are not maintainable and the petitioners cannot Be summoned in the same. In support, the counsel places reliance on the Judgments of  supreme Courts in Ashok Shewakramani & Ors. V. State of Andhra Pradesh & Anr.,and the judgment of The High Court of Gujarat in Somesh Sarjivan Jain v. State of Gujrat & Anr

The counse further submits that merely by amending the complaints and Now, in the relevant paragraphs, making averments against inter alia The petitioners, and by merely changing the number of the accused, the Respondent(s) cannot be said to have satisfied the requirements of  Section 141 of the NI Act. The counsel further  submits that, therefore, even otherwise The Complaint Cases, as against the petitioners, are liable to be Dismissed.

CONTENTIONS OF THE RESPONDENT:

The respondents through their counsel Submits that the Trust (the accused no.2 in the Complaint Cases) had Been issued the legal/demand notice dated 28.01.2019, to be served Through its Trustees. The respondent(s) were not aware of the Trustees Of the said Trust till the deposition of the official of the Axis Bank.counsel further Submits that though the respondent(s) had dealt with the petitioners, They were not aware of their status as Trustees of the accused the counsel further  submits that the notice addressed to the Trust through its Trustees,Is sufficient notice to the Trustees themselves in their individual Capacity as well. In support, the counsel also  placed reliance on the judgment of the Supreme Court in Kirshna Texport & Capital Markets Ltd. V. Ila A. Agrawal & Ors. .Placing reliance on the judgment of the Supreme Court in Hardeep Singh v. State of Punjab & Ors., the counsel further  Submits that the purpose of Section 319 of the Cr. P.C. is to ensure that the real culprit should not get away unpunished. The counsel further submits that Once it is discovered that the petitioners are the Trustees of the Accused no.2 Trust and are also alleged to be involved in the alleged Transactions with the respondent(s), they are liable to be proceeded Against in terms of Section 141 of the NI Act.the counsel submits that the Purpose of Section 319 of the Cr. P.C. is to address such a situation. Counsel  also placed reliance on the judgment of the High Court of Madras in Abraham Memorial Educational Trust v. C. Suresh Babu,, to contend that under Section 141 of the NI Act, all the Trustees of a Trust would be equally liable to be Proceeded against under Section 138 of the NI Act.

COURTS ANALYSIS AND JUDGEMENT:

On hearing both the parties and considering the legal provisions, the court observed that the  only plea of the petitioners is the Lack of notice under Proviso (b) to Section 138 of the NI Act and the Purported lack of pleadings in the Complaint Cases against the Petitioners herein in their individual capacity. The court also observed that As far as the lack of notice under Proviso (b) to Section 138 of The NI Act is concerned,  the said Provision requires notice to be sent to the ‘drawer’. Admittedly Notice(s) in the present Complaint Cases has been sent to the drawer,That is, the accused no.2-Trust.  The court also referred few judicial presidents.The court further considered that  There is no requirement for separate notice(s) to be Issued to each of the Trustees of the accused   to make them Vicariously liable and to be proceeded against in terms of Section 138 Of the NI Act read with Section 141 of the NI Act. The court further observed that the notice having Been served on the Trust through its Trustees, all the Trustees are Deemed to have been duly served with the legal/demand notice(s), Thereby meeting the requirement of Proviso (b) to Section 138 of the NI Act.As far as the plea of the learned counsel for the petitioners that The respondent(s) has merely changed the number of the accused in the Complaints and there is a lack of necessary pleadings in the complaint Cases in this regard, therefore the court opined that there is  no merit in the same. Therefore the court opined that, the above averments are sufficient for the purpose Of attracting Section 141 of the NI Act against the petitioners. Even Otherwise, in their capacity as Trustees of the accused no. 2, the Petitioners are officers in charge of the Trust. The petitioners shall Have to lead their defence under Section 141 of the NI Act, in case they are to escape their liability as the Trustees of the accused no.2-Trust, who is the drawer of the cheque(s) in question. Therefore the court opined that Such defence is Not to be considered by this Court or the learned Trial Court at this Stage, Hence . In view of the above, the court opined that there is no merits in the present petitions and , accordingly, dismissed the present petition.

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Impleading the appellant as a legal representative would change the nature of the suit:Delhi High Court.

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CASE TITTLE:K JEEVAN RITA MURTHY .V. SARABJIT SINGH (SINCE DECEASED) & ANR.

CASE NO: FAO(OS) 67/2024 & C.M.Nos.27890-27894/2024

ORDER ON:10th May, 2024

QUORUM:J.MS.MANMEET, J.PRITAM SINGH ARORA

FACTS OF THE CASE:

The Present appeal in question has been filed challenging the impugned judgement Dated 15th January, 2024 passed by the learned Single Judge,  Wherein an  application was filed by the appellant for Substitution as a legal representative of the deceased defendant which was dismissed. The appellant further challenged the order  passed by the learned Single Judge which was also dismissed, latee the review petition was filed by the appellant Challenging the order was also dismissed. Hence present appeal.

LEGAL PROVISIONS:

Section 213 of the Indian Succession Act, 1925:talks about as to when the Right as executor or legatee be established, i.e No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

CONTENTIONS OF APPELLEANT:

Learned counsel appearing for appellant submits that the learned Single Judge had Erred in allowing the application filed by Mr. Ved Vyas on behalf of the alleged legal heirs for substitution as legal Representatives of the deceased defendant without there being any proof of the same. The counsel further submitted,  that the learned Single Judge erred in dismissing IA  filed by the appellant seeking substitution as a legal Representative of the deceased defendant by failing to consider that firstly, The apellant had already filed Test Case seeking Letters of Administration in her favour on the basis of the Will executed by the Deceased defendant and secondly, that the appellant had been living in the Suit property with deceased defendant since prior to his death and has Continued to live.

COURTS ANALYSIS AND JUDGEMENT:

The court on being  perused the paper book, the Court opined that the Subject suit has been filed by the respondent /plaintiff for recovery of Possession of the suit property claiming himself to be the owner of the suit Property by virtue of documents including a will dated 15th March, 1982, Executed by the deceased defendant. On the other hand, the court observed that the appellant is claiming to have become the Owner of the suit property on the basis of an unregistered will dated 08th November, 2021 executed in her favour by the deceased defendant. Thus, The court observed that the appellant is claiming substitution as a legal representative of the Deceased defendant as his legatee on the basis of a will whose genuineness is Yet to be established and proved. (Re: Section 213 of the Indian Succession Act, 1925).This Court is in agreement with the view of the learned Single Judge That impleading the appellant as a legal representative of the deceased Defendant would change the nature of the suit from a suit for possession to a suit for determination of title inter se the appellant and deceased defendant’s Alleged legal heirs under Class-II, which would exceed the scope of the Subject suit. Consequently, the court dismissed  the present appeal along with the applications.

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judgement reviewed by:Sowmya.R

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