New Cheque Dishonour Amendment Explained - Gujarat HC - Times of India

In an important order in a cheque bouncing case, Gujarat high court has explained and clarified the new law regarding jurisdiction of courts in such matters and where an aggrieved party can file a complaint.

In this case, the petition was filed by a resident of Uttar Pradesh after an Ahmedabad-based firm moved the Ahmedabad metropolitan court under Section 138 of the Negotiable Instruments Act against a dishonoured cheque. The cheque was issued in Badalpur, UP, and deposited in a bank in Gorakhpur, UP. When the cheque was dishonoured due to inadequate balance, the payee filed a complaint in Ahmedabad.

The UP resident questioned the jurisdiction of Ahmedabad court on the ground that the cheque was issued in UP and delivered in UP. No action in the matter had taken place in Ahmedabad. On the other hand, the Ahmedabad-based firm argued that the complaint was maintainable because the company had its bank account in Ahmedabad.

Justice J B Pardiwala rejected the UP resident's contention and gave a clarification on the amended law. The court made it clear that "when the cheque is delivered for collection through an account, the complaint is to be filed before the court where the branch of the bank is situated, where the payee or the holder in due course maintains his account and, secondly, when the cheque is presented for payment over the counter, the complaint is to be filed before the court where the drawer maintains his account."

The issue has a curious history. In 2014, the Supreme Court ruled that cheque return cases can be filed in a court where the issuer (drawer) maintains his account. This resulted in shifting of lakhs of cases from one town to the other and caused complainants difficulties.

To put an end to the payee's troubles, the President promulgated the Negotiable Instruments (Amendment) Ordinance in June 2015. This provided that the complaint can be filed in a court where the payee maintains his bank account. While the amended law takes care of interest of the payee of the cheque, it also tries to ensure that drawer of multiple chequess is not harassed by payees filing different complaints at different places. In such a case, all complaints should be filed in the court where the first case was lodged.

Source -http://m.timesofindia.com/city/ahmedabad/High-Court-explains-new-cheque-bounce-law/articleshow/51751606.cms

Milk Adulteration to be Punishable with Life Imp.

In a significant statement with wide implications, the Centre on Wednesday told the Supreme Court that it has formed a highlevel committee to consider if to make the offence of milk adulteration punishable by life imprisonment. It has agreed to the view of the court that the present penalty of six months in jails "was hardly a deterrent" for the menace which was most acute in Delhi and Uttar Pradesh.

An affidavit in the court by Rakesh Nayal, a senior official in the Union health ministry said the panel, headed by R.K. Jain, secretary of the National Disaster Management Authority, and representatives from Food Safety and Standard Authority of India will take a decision within 45 days.

The court had on December 12, 2014 taken serious exception to Centre's refusal to amend the law to make the offence punishable with life term. 

"What are you doing about it? In March we had given an ultimatum to the Centre to inform us if you are amending the law and we are now in December,"

the Bench said when Anurag Tomar, the lawyer for the petitioner in the PIL, pointed out the delay.

"After perusing the reports submitted by various states, prima-facie we are of the opinion that milk is being laced with white paint, caustic soda, detergent, shampoo, urea, starch and blotting paper and the practice is going unabated. The Centre must come out with necessary amendment to the Act with all seriousness to curb adulteration. We hope the government will take appropriate decision during the winter session of Parliament," the court had said.

The Bench had earlier said it would be foolish to go lightly on adulterators just because no grievous illness or death has been reported immediately after someone drinks milk laced with such poisonous substances. 

"The poisoning in the body is gradual and once it happens people think they are afflicted with cancer and nobody blames milk. Are you waiting for them to add cyanide in milk? Only then instant death will be caused for you to take action," 

the court had said.

The Bench suggested an amendment to the law after the Uttar Pradesh government said they faced a hurdle in prosecuting adulterators under the IPC and seeking their life imprisonment after the Allahabad High Court ruled in 2010 that the IPC cannot be invoked when the FSSA should prevail.

Source: India Today

Source: http://indiatoday.intoday.in/story/milk-adulteration-life-imprisonment-centre-health-ministry-supreme-court-rakesh-nayal-fssai/1/416991.html

Jurisdiction of cheque dishonor complaint - Judgement

Dis-honour of Cheque cases can be filed only to the Court within whose local jurisdiction, the offence was Committed; ie, where the cheque is dishonoured by the bank on which it is drawn.

Bhaskaran Vs Balan (2009) which allowed Five territorial Jurisdictions overruled [Read the Judgment]On August 4, 2014 by M.A.Rashid

A three Judge Bench of the Supreme Court finally held that  a Complaint of Dis-honour of Cheque can be filed only  to  the  Court  within  whose  local jurisdiction the offence was committed, which  in  the  present  context  is where the cheque is dishonoured by the bank on which it is drawn. The Court clarified that the Complainant  is  statutorily  bound  to comply with Section 177 etc. of the CrPC and therefore the  place  or  situs where the Section 138 Complaint is to be filed is not of his choosing.

The Supreme Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr. Overruled the two Judge Bench Judgment in K. Bhaskaran v. Sankaran Vaidhyan  Balan  (1999)  7 SCC 510 wherein  it was held that “the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts.

Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice”.” if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.”

The Court accepted the view of another two Judge Bench Judgment in Harman  Electronics  Pvt.Ltd. v. National Panasonic India Pvt. Ltd. (2009) 1  SCC  720. “It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence.

For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be  proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken.

 If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would.”.

Justice Vikramjit Sen who wrote the main Judgment held that “We  respectfully agree  with  this  statement  of  law  and  underscore  that   in   criminal jurisprudence there is  a  discernibly  demarcated  difference  between  the commission of an offence and its  cognizance  leading  to  prosecution.

The Harman  approach  is  significant  and  sounds  a  discordant  note  to  the Bhaskaran ratio.  Harman also highlights the reality  that  Section  138  of the NI Act is being rampantly misused so  far  as  territorial  jurisdiction for trial of the Complaint is concerned.  With the passage of time  equities have therefore transferred from one end of the pendulum to  the  other.

 It is now not uncommon for the Courts to encounter the issuance of a notice  in compliance with clause (b) of the proviso to Section 138 of the NI Act  from a situs which bears no connection with the Accused or with any facet of  the transaction between the parties, leave aside the place where  the  dishonour of the cheque has taken place.
This is also the  position  as  regards  the presentation of the cheque, dishonour  of  which  is  then  pleaded  as  the territorial platform of the Complaint under  Section  138  of  the  NI  Act.

Supreme Court flays the government for turning to judges whenever in problem

Source - http://www.india.com/loudspeaker/supreme-court-flays-the-government-for-turning-to-judges-whenever-in-problem-101283/

New Delhi, Jul 23: Criticising the government for substituting judges with subject experts without legal background in tribunals under its control, the Supreme Courtsaid that whenever it is confronted with contentious issues it knocks at the doors of the court for their resolution. “Judges may not be expert but whenever problem arises they (government) come to judges either by way of (setting up) Commission or (approach) Court to decide the issues” said the apex court constitution bench of Chief Justice R.M. Lodha, Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice A.K. Sikri and Justice Rohinton Fali Nariman.

The court was apparently referring to numerous instance when government has moved the top court for the resolution of contentious and delicate issues which have political and other implications. The court said this as it reserved its verdict on a batch of petitions challenging the validity of the National Tax Tribunal Act and Article 323-A of the constitution providing for administrative tribunals, and Article 323-B providing for tribunals for all other matters including tax, foreign exchange, import and export and customs.

The government wants to do away with the “artificial knowledge” of the judges which they gain from decades of their practice of law first at the bar and later on bench, and substitute them on the tribunals with non-judicial members having “specialised knowledge” bereft of any legal grooming, the court said.

The scathing observations came as senior counsel Arvind Dattar told the court that the Income Tax Appellate Tribunal and National Tax Tribunals while deciding the tax matters were also deciding the matters related to the Hindu succession law. The court asked Dattar to provide with some of the cases where tax tribunal has decided the tax matters involving the Hindu succession law.

Dattar who appeared for Madras Bar Association told the court that while Article 323-A of the constitution had sought to eliminate judicial review for the executive actions in service matters, Article 323-B “enabled the creation of parallel judiciary under the executive control.” He said that at any rate Article 323-A “should be struck down” and Article 323-B must be interpreted so that the word “Tribunal” only covers tribunals that are part of the judiciary like Rent Control Tribunals, Motor Vehicles Tribunals, Labour Tribunals etc.”

Assailing the Centre’s stand that tribunals were created because high courts were clogged with the huge pendency, Dattar said that “clogging” of the high courts could not be a ground for creating a judicial system out the constitutionally mandated judiciary with defined hierarchy.

Dattar wondered whether same logic could be extended to have an “alternative institutional mechanism” for parliament as its functioning or lack of it has been criticised variously. The Chief Justice Lodha in a mocking observation said that tribunals that were being constituted were not independent what to talk of being autonomous.

Chief Justice Lodha’s scathing observations came as Solicitor General Ranjit Kumar while defending the dispensation of justice by the tribunals referred to a British judgment supporting tribunals. Ranjit Kumar landed in difficulty as British judgment stressed on the “autonomy” of the tribunals and not dispensing with the “constitutional role of the High Courts – a position that is non-existent in Indian context.

Earlier in the course of the hearing the court told senior counsel K.V. Vishwanathan that deciding an appeal involved a complex knowledge of law which was beyond the comprehension of a chartered accountant.

“How a CA who is not qualified in law, can help in the determination of substantial question of law, and to spell out what is the substantial question of law was beyond their comprehension”, the court told Vishwanathan who had appeared for the Instituted of Company Secretaries of India.

India to consider e-mail as valid evidence

Corporate Executives, those who rely on email for communication, can be more confident in using them. The government has drafted new company law. The law permits to recognize e-mail as a valid piece of evidence. However, the move would tighten the noose around the companies.
In India, there is no specific recognition of e-mails as evidence. Officials pointed out that companies facing prosecution have often exploited this lack of clarity. The officials also point out that the basic ground work towards the move is almost ready with the inception of the ministry's e-governance project. The new Company Law is expected to be placed in Parliament soon.
Till date, in India, companies facing prosecution have often exploited the lack of clarity on emails. The officials point out that the basic ground work towards the move is almost ready with the inception of the ministry's e-governance project. The project named MCA-21 has enabled computerization of documents and records filed by companies, reported the Economic Times.

Technorati : e-mail as valid evidence Yogesh Naik Advocate Karwar
Del.icio.us : e-mail as valid evidence Yogesh Naik Advocate Karwar
Ice Rocket : e-mail as valid evidence Yogesh Naik Advocate Karwar
Flickr : e-mail as valid evidence Yogesh Naik Advocate Karwar
Zooomr : e-mail as valid evidence Yogesh Naik Advocate Karwar
Buzznet : e-mail as valid evidence Yogesh Naik Advocate Karwar

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HIGH COURT OF KARNATAKA Notification about the Circuit Bench cases

The Full Court of the High Court of Karnataka, vide Resolution dated 03.06.2008, has resolved to commence sitting of Judges and Division Courts at the Circuit Benches at Dharwad and Gulbarga on 07.07.2008. The Full Court has also resolved that cases arising from the Districts of Bagalkot, Bellary, Belgaum, Dharwad, Gadag, Haveri, Uttara Kannada - Karwar and Koppal will be heard and decided at the Circuit Bench at Dharwad and cases arising from the Districts of Bidar, Bijapur, Gulbarga and Raichur will be heard and decided at the Circuit Bench at Gulbarga. It has been further resolved that pending cases from the above mentioned districts will be transferred to the respective Circuit Bench before 07.07.2008 and that filing of new cases at the Circuit Benches will be permitted from 07.07.2008.

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Advocates heading for new 'benches'

The two High Court circuit benches set to start functioning from July 7, have brought smiles on the faces of several advocates, who are practising in Bangalore as they are more happy to return to their backyards in North Karnataka.

Many advocates are busy searching for suitable places to establish their offices at Dharwad and Gulbarga. Some of them have already started packing-up.

Even those North Karnataka advocates, who have a thriving practice in Bangalore since 1980 are ready to move their office to Dharwad, because they have been receiving more than 80 per cent of the cases from that region.

Over 40,000 case files of northern region pending before the High Court have already been transferred appropriately to these two benches by the Court registry.

They are all set to start their practice at Dharwad and Gulbarga by next week.

The Circuit Bench will have jurisdiction over the districts of Belgaum, Bagalkot, Bellary, Dharwad, Gadag, Haveri, Koppal and Uttar Kannada. Apart from Justice S.R. Bannurmath, Justice A.N. Venugopalgouda, Justice S. Abdul Nazir, Justice Ashok Inchageri and Justice A.S. Pachchapur will be officiating judges.