Canara Bank

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the jurisdiction to entertain a petition filed under Section 138 of the Negotiable Instruments Act. = whether the Court within the jurisdiction whereof, the complainant had presented the dishonoured cheque (issued by an accused), had the jurisdiction to entertain a petition filed under Section 138 of the Negotiable Instruments Act. = “14. 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. 15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below: “Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.” 16. Thus it is clear, 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. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act.”= We have perused the aforesaid decision of this Court in Harman Electronics Private Limited (Supra) and we find on a reading of paragraphs 11 and 12 of the judgment in the aforesaid case that in that case the issue was as to whether sending of a notice from Delhi itself would give rise to a cause of action for taking cognizance of a case under Section 138 of the Negotiable Instruments Act when the parties had been carrying on business at Chandigarh, the Head Office of the respondent-complainant was at Delhi but it had a branch at Chandigarh and all the transactions were carried out only from Chandigarh. On these facts, this Court held that Delhi from where the notice under Section 138 of the Negotiable Instruments Act was issued by the respondent would not have had jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act. This question does not arise in the facts of the present case. 7. For the aforesaid reasons, we allow the appeal, set aside the impugned judgment of the High Court and remand the matter to the Chief Judicial Magistrate, Sopore for decision in accordance with law.” (emphasis is ours) 7. In view of the above, having taken into consideration the factual position noticed by the High Court in paragraph 13 of the impugned judgment, we are of the view, that the High Court erred in concluding that the courts at Delhi, did not have the jurisdiction to try the petition filed by the appellant under Section 138 of the Negotiable Instruments Act. The impugned order dated 27.4.2012 passed by the High Court is accordingly liable to be set aside. The same is, therefore, hereby set aside.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40783 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1457 OF 2013 (Arising out of SLP (Criminal) No. 7325 of 2012) M/s. Escorts Limited … Appellant Versus Rama Mukherjee … Respondent J U D G M E N T Jagdish Singh Khehar, J. 1. This Court on 21.2.2013 directed that … Continue reading

Unauthorized Adjustments not valid – Defendant No. 1, the Hongkong & Shanghai Banking Corporation Ltd., a Company incorporated under the laws of Hong Kong, aggrieved by the judgment and decree dated 30th of June, 2004 passed by the Special Court (Trial of Offences relating to Transaction in Securities), Bombay in Suit No. 11 of 2002 decreeing the plaintiff’s suit for a sum of Rs. 18,59,71,808.22/- along with interest at the rate of 15% has preferred this appeal.= Plaintiff Canbank Financial Services Ltd., respondent no. 1 herein filed the suit seeking a decree directing defendant no. 1 to pay to the plaintiff a sum of Rs.33,13,42,781.62/- with further interest thereon at the rate of 24% per annum compounded quarterly from the date of the suit till realization. It is the assertion of the plaintiff that defendant no. 1 was not justified in adjusting the amount paid by the plaintiff for purchase of bonds towards transactions between defendant no. 1 and Canbank Mutual Fund. The plaintiff has alleged that the transaction between defendant no. 1 and Canbank Mutual Fund are totally unconnected with the transaction between plaintiff and defendant no. 1. Whether Defendant prove that the said pay order for Rs. 18,59,71,808.22 was issued by Plaintiffs on behalf of CMF as alleged in para 8 of Written Statement?” whether defendant no. 1 has established that the payment that was made by the plaintiff to it on 24th of June, 1991 was on behalf of the Canbank Mutual Fund? – It is the specific case of defendant no. 1 that the broker informed it that the plaintiff has made payment on behalf of Canbank Mutual Fund. However, the letter dated 25th of February, 1993 of the broker to defendant no. 1 shows that on 24th of June, 1991 the Coal India bonds were sold by defendant no. 1 to the plaintiff and not to Canbank Mutual Fund. From the aforesaid it is evident that defendant no. 1 has not been able to prove that payment was made by the plaintiff on behalf of Canbank Mutual Fund. The natural corollary thereof is that the payment was made by the plaintiff to defendant no. 1 to purchase the bonds. It is not the case of defendant no. 1 that it had delivered the bonds to the plaintiff. Therefore, we are in agreement with the reasoning and the conclusions arrived at by the trial court and find no reason to interfere with the same.

  published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40557  NON-REPORTABLE   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5281 OF 2004     HONGKONG & SHANGHAI BANKING CORPN. LTD. APPELLANT VERSUS CANBANK FINANCIAL SERVICES LTD. & ANR. RESPONDENTS   JUDGMENT   CHANDRAMAULI KR. PRASAD,J.     Defendant No. 1, the Hongkong & Shanghai Banking Corporation … Continue reading

whether the Court, where a cheque is deposited for collection, would have territorial jurisdiction to try the accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short “the N.I.Act”) or would it be only the Court exercising territorial jurisdiction over the drawee bank or the bank on which the cheque is drawn? = whether the sending of notice from Delhi itself would give rise to a cause of action in taking cognizance under the N.I. Act. In such circumstances, we are of the view that Harman Electronics (supra) is only an authority on the question where a court will have jurisdiction because only notice is issued from the place which falls within its jurisdiction and it does not deviate from the other principles laid down in K. Bhaskaran (supra). This Court has accepted that the place where the cheque was presented and dishonoured has jurisdiction to try the complaint. In this way, this Court concluded that issuance of notice would not by itself give rise to a cause of action but communication of the notice would. In other words, the court clarified only on the service in such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days, thereafter, the commission of an offence completes. We are of the view that this Court in Harman Electronics (supra) affirmed what it had said in K. Bhaskaran (supra) that court within whose jurisdiction the cheque is presented and in whose jurisdiction there is failure to make payment within 15 days of the receipt of notice can have jurisdiction to try the offence under Section 138 of the N.I. Act. It is also relevant to point out that while holding that the Chandigarh Court has jurisdiction, this Court in Harman Electronics (supra) observed that in the case before it, the complaint was silent as to whether the said cheque was presented at Delhi. In the case on hand, it is categorically stated that the cheque was presented at Bhiwani whereas in Harman Electronics (supra) the dishonour had taken place at Chandigarh and this fact was taken into account while holding that Chandigarh court has jurisdiction. In the complaint in question, it is specifically stated that the dishonour took place at Bhiwani. We are also satisfied that nothing said in Harman Electronics (supra) had adverse impact on the complainant’s case in the present case. we must note that in K. Bhaskaran (supra), this Court has held that Section 178 of the Code has widened the scope of jurisdiction of a criminal court and Section 179 of the Code has stretched it to still a wider horizon. Further, for the sake of repetition, we reiterate that the judgment in Ishar Alloy (supra) does not affect the ratio in K. Bhaskaran (supra) which provides jurisdiction at the place of residence of the payer and the payee. We are satisfied that in the facts and circumstances and even on merits, the High Court rightly refused to exercise its extraordinary jurisdiction under Section 482 of the Code and dismissed the petition filed by the appellantaccused. In the light of the above discussion, we hold that the ratio laid down in K.Bhaskaran (supra) squarely applies to the case on hand. The said principle was correctly applied by the learned Sessions Judge as well as the High Court. Consequently, the appeal fails and the same is dismissed. In view of the dismissal of the appeal, the interim order granted by this Court on 09.12.2011 shall stand vacated.

published in http://judis.nic.in/supremecourt/filename=40477 Page 1 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 808 OF 2013 (Arising out of S.L.P. (Crl.) No. 9434 of 2011) Nishant Aggarwal …. Appellant(s) Versus Kailash Kumar Sharma …. Respondent(s) J U D G M E N T P.Sathasivam,J. 1) Leave granted. 2) The question … Continue reading

SUIT: Suit for declaration of title, possession, permanent injunction and mesne projects – Plaintiffs came to know of the property only when they cleared the bank loan taken by their father mortgaging the property – Plaintiffs claimed that defendants in unlawful possession – Trial Court decreeing the suit – High Court reversing it – On appeal, Held : Neither the title to the property nor the adverse possession thereof proved by defendants – Hence Trial Court’s well considered judgment restored – High Court’s judgment set aside – Adverse possession. The suit property was purchased by one `N’, who died leaving all his properties to his sons (the plaintiffs) under a will. He had mortgaged the suit property as also other properties to a Bank. The plaintiffs were prosecuting their studies at the time of their father’s death. Plaintiffs became aware of the suit property only when they cleared the bank loan and got back the title deeds. They traced the suit property and found the defendant in unauthorized possession. Therefore, they filed the suit for declaration of title, possession, permanent injunction and mesne profits. The trial court decreed the Suit. On appeal, the High Court reversed the trial court’s judgment and dismissed the suit. Hence the appeal. =Allowing the appeal, the Court HELD : 1. The High Court has neither discussed the evidence relating to identity of the suit property nor held that the trial court’s finding that plaintiffs have established their title and identity of the suit property was erroneous. The High Court has rejected the entire case of the plaintiffs merely on the ground that in the mortgage suit of the Bank, the Katha number of the property is wrongly given. The plaintiffs have offered a simple and acceptable explanation in regard to the wrong Katha number. [Para 12] [625-A-C] 2. The first appellate court can re-appreciate evidence and record findings different from those recorded by the trial court. It is well settled that if the appraisal of evidence by the trial court suffers from material irregularity, as for example when its decision is based on mere conjectures and surmises, or when its decision relied upon inadmissible evidence or ignores material evidence or when it draws inferences and conclusions who do not naturally or logically flow from the proved facts, the appellate court is bound to interfere with the findings of the trial court. It is equally well settled that where the trial court has considered the entire evidence and recorded several material findings, the first appellate court would not reverse them on the basis of conjectures and surmises or without analyzing the relevant evidence in entirety. As the final court of facts, if the first appellate court is reversing the judgment of the trial court, it is bound to independently consider the entire evidence. The High Court has ignored these well settled principles. [Para 8] [622-E-H; 623-A] 3. In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit. [Para 13] [625-E-F] 4. The sale deed dated 18.11.1985 alleged to have been executed by Gowramma (Ex.D1 is a certified copy) was clearly a fabricated document in regard to an non-existing site obviously with the intention of laying claim over the suit property. The said deed did not convey any right, title or interest to the defendant in respect of the suit property. [Para 15] [627-F-G] 5. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. [Paras 17 and 18] [629-A-C] Periasami vs. P. Periathambi 1995 (6) SCC 523; Md. Mohammad Ali (dead) by LRs. vs. Jagdish Kalita 2004 (1) SCC 271 and P.T. Munichikkanna Reddy vs. Revamma 2007 (6) SCC 59 – relied on. Mohan Lal (Dead through LRs) vs. Mirza Abdul Gaffar 1996 (1) SCC 639, held inapplicable. 6. The only material produced by defendant to show that he was in possession from 1962, is the recital in the sale deed dated 18.11.1985. As the sale deed dated 18.11.1985 is established to be a bogus and false document, the claim of defendant that he was in occupation of the suit site as a tenant from 1962, is liable to be rejected. [Para 19] [630-E-F] 7.1. The judgment in O.S. No.578/1978 (Ex.P13) relied upon by defendant and the evidence of PW2 and PW3 would clearly establish that the defendant was residing in the property of Muddukrishna (site No.9) adjoining the suit property as a tenant, and that he had unauthorizedly put up a temporary cattle shed in the suit property in or about the year 1978. This may at best prove adverse possession of suit property by defendant from 1978. [Para 23] [632-F-H] 7.2. The defendant has not produced any evidence to show that he was in possession of the suit property for a period of 12 years prior to the filing of the suit by plaintiff on 24.6.1987. Neither the correspondence between defendant and City Survey Department subsequent to the suit nor the katha, sanction of plan and tax receipts of the years 1991, 1992, and 2002 (all subsequent to the suit), are of any relevance. The defendant did not examine either Gowramma or any other neighbour to show that he was in continuous possession of the suit property for more than 12 years. Except his vague and interested statement which is proved to be false, there is no evidence to show that he was in possession for a period of 12 years prior to the suit of plaintiffs. [Para 24] [633-A-C] 7.3. When defendant claimed title and that was proved to be false or fabricated, then the burden is heavy upon him to prove actual, exclusive, open, uninterrupted possession for 12 years. In this case he did not make out such possession for 12 years prior to the suit. While the plaintiffs have made out a clear and absolute title of the property, the defendant has not been able to make out title or adverse possession for more than 12 years. The High Court did not examine any of these aspects and by a cursory judgment, reversed the well considered judgment of the trial court. Therefore the decision of High Court cannot be sustained. The judgment and decree of the High Court is set aside and the judgment and decree passed by the trial court is restored. [Paras 25 and 26] [633-C-F] Case Law Reference: 1996 (1) SCC 639 held inapplicable Para 16 1995 (6) SCC 523 relied on Para 17 2004 (1) SCC 271 relied on Para 17 2007 (6) SCC 59 relied on Para 17 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4125 of 2009. From the Judgment & Order dated 12.09.2006 of the High Court of Karnataka at Bangalore in RFA. No. 394 of 2004. Rajesh Mahale for the Appellants. Brijesh Kalappa and Divya Nair, N. Ganpathy for the Respondent.

1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4125 OF 2009 [Arising out of SLP (C) No. 8405 of 2007] L. N. Aswathama & Anr. … Appellant(s) Vs. P. Prakash … Respondent (s) O R D E R R. V. Raveendran, J. Leave granted. 2.The appellants are the plaintiffs in … Continue reading

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