//
archives

Courts of Metropolitan Magistrate

This tag is associated with 6 posts

Sec.406 I.P.C.- Criminal breach of Trust – police reported the case as false – protest petition and it’s appeal were dismissed by lower courts – High court in revision set aside the lower courts order and remanded the case finding prima faice offence for next step allowing protest petition – Apex court confirmed the High court order – Complainant clearly deposed that he had handed over gold while purchasing cloth in accused shop and were not returned – accused admitted the same – enough to hold prima faice case against the accused – accused admitted it – burden lies on him to prove non-guilty = Ghanshyam …. Appellant Vs. State of Rajasthan …. Respondent = Published in/Cited in / Reported in judis.nic.in/supremecourt/filename=41078

Sec.406 I.P.C.- Criminal breach of Trust – police reported the case as false – protest petition  and it’s appeal were dismissed by lower courts – High court in revision set aside the lower courts order and remanded the case finding prima faice offence for next step allowing protest petition  –  Apex court confirmed the High … Continue reading

Negotiable Instruments Act, 1881-ss.141 & 138: Dishonour of cheque issued by proprietorship firm-Complaint against its employee-Held: Proprietary concern is not a company within meaning of s.141-Hence employee of such a concern cannot be proceeded against-Code of Criminal Procedure, 1973-s.482. Officence by company-Vicarious liability of the Director. Code of Civil Procedure, 1908-Order XXX, Rules 1 and 10-Partnership firm and proprietorship firm-Distinction between-Re-iterated. Respondent No. 1 filed complaint petition alleging commission of offence under Section 138 of the Negotiable Instruments Act. It was alleged that a cheque was issued by accused nos.2 to 6 for a sum of Rs. 2 Lakhs which on presentation was dishonoured. Accused no.1 was described as a business concern. Appellant arrayed as accused no. 3 was described as In charge, Manager, Director of accused no. 1. The Metropolitan Magistrate issued summons to the accused persons. Appellant filed application before High Court u/s. 482 CrPC for quashing the summons issued to him. The application was dismissed. Hence the present appeal. =Allowing the appeal, the Court HELD: 1. The concept of vicarious liability was introduced in penal statutes like Negotiable Instruments Act to make the Directors, partners or other persons, in charge of and control of the business of the Company or otherwise responsible for its affairs; the Company itself being a juristic person. [Para 8] [889-d] 2. A bare perusal of the complaint petition would show that the accused No. 1 was described therein as `a business concern’. It was not described as Company or a partnership firm or an Association of Persons. The description of the accused in the complaint petition is absolutely vague. A juristic person can be a Company within the meaning of the provisions of the Companies Act, 1956 or a partnership within the meaning of the provisions of the Indian Partnership Act, 1932 or an association of persons which ordinarily would mean a body of persons which is not incorporated under any statute. A proprietary concern, however, stands absolutely on a different footing. A person may carry on business in the name of a business concern, but he being proprietor thereof, would be solely responsible for conduct of its affairs. A proprietary concern is not a Company. Company in terms of the explanation appended to Section 141 of the Negotiable Instruments Act, means any body- corporate and includes a firm or other association of individuals. Director has been defined to mean in relation to a firm, a partner in the firm. Thus, whereas in relation to a Company, incorporated and registered under the Companies Act, 1956 or any other statute, a person as a Director must come within the purview of the said description, so far as a firm is concerned, the same would carry the same meaning as contained in the Indian Partnership Act. In view of the said description of “Director”, other than a person who comes within the purview thereof, nobody else can be prosecuted by way of his vicarious liability in such a capacity. If the offence has not been committed by a Company, the question of there being a Director or his being vicariously liable, therefore, would not arise. [Paras 7, 9 and 10] [889-c; E-g; 890-A] 3. Appellant categorically contended that accused No. 1 was a proprietary concern of the accused No. 2 and he was merely an employee thereof. If accused No. 1 was not a Company within the meaning of Section 141 of the Negotiable Instruments Act, the question of an employee being proceeded against in terms thereof would not arise. Respondent was aware of the difference between a `partnership firm’ and a `business concern’ as would be evident from the fact that it described itself as a partnership firm and the accused No. 1, as a business concern. Significantly, Respondent deliberately or otherwise did not state as to in which capacity the appellant had been serving the said business concern. It described him as in charge, Manager and Director of the accused No. 1. A person ordinarily cannot serve both in the capacity of a Manager and a Director of a Company. [Paras 11 and 12] [890-b-d] 4. The distinction between partnership firm and a proprietary concern is well known. It is evident from Order XXX Rule 1 and Order XXX Rule 10 of the Code of Civil Procedure. It is trite that a proprietary concern would not answer the description of either a Company incorporated under the Indian Companies Act or a firm within the meaning of the provisions of Section 4 of the Indian Partnership Act. [Paras 13 and14] [890-e; 891-d] S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, A.I.R. (2005) SC 3512, followed. Sahitha Ramamurthy & Anr. v. R.B.S. Channabasavaradhya, A.I.R. (2006) SC 3086 and S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2007) 3 SCALE 245, relied on. M/s. Ashok Transport Agency v. Awadhesh Kumar and Anr., [1998] 5 SCC 567, referred to. 5. For the reasons aforementioned, this Court is unable to agree with the High Court that no case had been made out for exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure. The complaint case against the appellant is quashed. [Paras 16 and 17] [891-f] G. Sivabalamurugan, Y. Arvnagiri and L.K. Pandey for the Appellant. Tatini Basu (for Sudhir Nandrajog) for the Respondent.

CASE NO.: Appeal (crl.) 485 of 2007 PETITIONER: Raghu Lakshminarayanan RESPONDENT: M/s. Fine Tubes DATE OF JUDGMENT: 05/04/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T CRIMINAL APPEAL NO. 485 2007 [Arising out of S.L.P. (Crl.) No. 4211 of 2006] S.B. SINHA, J. Leave granted. Appellant before us … Continue reading

the Supreme Court in K. Veeraswami v. Union of India7, it cannot be said that judicial pronouncements made by Judges and Judicial Officers can be subjects for prosecuting those Judges or Judicial Officers in discharge of their judicial functions, particularly in any private complaint filed by the aggrieved party whether such aggrieved party is a party to those proceedings in which judicial pronouncements were rendered. 20. Section 77 IPC reads as follows: "77. Act of Judge when acting judicially.- Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law." Under this provision, no judicial act performed by a Judge can be an offence. For applicability of Section 77, the following ingredients are necessary: a) that the act was done by a Judge b) that the said act was done by the Judge when acting judicially and c) that it was done in exercise of any power which is given to the Judge by law (or) the said act was done by the Judge in good faith believing that the power was given to him by law.

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.1472 of 2010 17-09-2010 Tummala Lakshmana Rao Sri Sadhu Narayana and 7 others. Counsel for the Petitioners: Sri Thummala Lakshmana Rao (in person) Counsel for the respondents: Nil :ORDER: 1. The petitioner seeks to file this revision petition questioning order dated 16.04.2010 passed by the Chief … Continue reading

APEX COURT GUIDE LINES WHILE EXECUTING NON-BAILABLE WARRANTS =Justice Cardozo puts it “on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.”“We therefore, find that there was no justification for issuance of non-bailable warrant on 7 th August, 2002 merely because the petitioner had remained absent in Criminal Case No. 163/P/2000 (sic) by the Metropolitan Magistrate. The Magistrate could have issued either a notice or a bailable warrant depending upon the 3facts revealed from the records. Once the warrant was cancelled on 12 th August, 2002, it was necessary for the Court to immediately communicate the same to the concerned Police authority so that no inconvenience could have been caused to the person against whom the warrant was initially issued. Once the warrant was sought to be executed on holiday and the concerned police officer was categorically informed that the warrant had already been cancelled and the police officer being fully aware of the circumstances and nature of the case in which warrant had been issued, it was necessary for the police officer to ascertain and to find out whether the warrant which was sought to be executed was still enforceable or had already been cancelled and not to rush to execute the warrant in those circumstances and that too on a holiday. Having produced the necessary documents confirming the cancellation of the warrant much prior to the date on which it was sought to be (sic) enforced, it was the duty of the police officer to tender the necessary apology to the petitioner for executing such warrant on the holiday, and the concerned officer having failed to tender the apology it apparently shows that he had not performed his duty in the manner he was required to perform as a responsible police officer. Even the affidavit filed by the respondent No. 2 nowhere discloses any repentance for having executed the warrant which was already cancelled. It is a clear case of unnecessary interference with the liberty of a citizen.”

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1758 OF 2011 (Arising out of S.L.P. (Crl.) No.5412 of 2008) RAGHUVANSH DEWANCHAND BHASIN — APPELLANT VERSUS STATE OF MAHARASHTRA & ANR. — RESPONDENTS J U D G M E N T D.K. JAIN, J.: Leave granted. 2. This appeal, by special … Continue reading

cheque bounce case should be tried and heard by the same magistrate and not by his successor= From the language of Section 326(3) of the Code, it is plain that the provisions of Section 326(1) and 326(2) of the new Code are not applicable to summary trial. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo.

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1703 OF 2011 (Arising out of SLP (Criminal) No. 723 of 2011) Nitinbhai Saevatilal Shah & Another … Appellant Versus Manubhai Manjibhai Panchal & Another … Respondents J U D G M E N T J.M. PANCHAL, J. Leave Granted. 2. This … Continue reading

whether the trial Court had power to grant permanent custody of the child to the father under the Protection of Women from Domestic Violence Act, 2005 (for short “the Act”). This was because it was specifically contended that the entrustment of custody to the father was not in tune with Section 21 of the Act. However, the appellate Court interfered with the order granting such custody on the ground that the custody of the child, aged below 5 years, should have been given only to the mother but not the father and did not go into the question of jurisdiction to grant or not to grant such an order.

THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Petition No.4966 of 2009 26-08-2009 Dr. Ambula Manoj Ambula Bhavana and another Counsel for the Petitioner: Sri K. Chidambaram Counsel for 1st Respondent: Sri M. Rajasekhara Reddy Counsel for 2nd Respondent: Public Prosecutor :ORDER: Heard Sri K. Chidambaram, learned counsel for the petitioner, Sri M. Rajasekhara Reddy, … Continue reading

Blog Stats

  • 2,881,395 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com