FEMA, BANKING & INSURANCE/COMPANY LAW : Vicarious prosecution of independent director for cheque bounce by co. to be quashed when he was not signatory of cheque & only general allegations made in complaint.

• Where only general allegations have been made against all the directors of the accused company that they were in charge of managing the day to day affairs of the Company and at the helm of the affairs of the company and there were no specific averments or allegations carving out a specific role attributable to petitioner in relation to conduct of business of accused company, the petitioner-director cannot be made vicariously liable criminally for dishonour of cheque of company not signed by him and there being material on record to show that he was an independent director in the company.

• Such mere general allegation or bald assertion may be sufficient to implicate the Managing directors as well as those who are signatories to cheque, but not the other directors or persons, especially independent or non-executive directors .In absence of any specific averments or allegations carving out a specific role attributable to petitioner in relation to conduct of business of accused company, merely making bald statements that all the accused persons/directors were incharge and responsible for the day to day affairs of the company, does not suffice to make the petitioner herein vicariously liable for dishonouring of the cheques not signed by him and there being material on record to show that he was an independent director in the company.

• In view thereof, the impugned order dated 28.11.2018 passed by the learned MM-04, Patiala House Courts, New Delhi in CC No.16201/2017 is thus, quashed to the extent of issuing of summons to the present petitioner for alleged commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
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HIGH COURT OF DELHI
Prakash Chand
v.
State
MS. SWARANA KANTA SHARMA, J.
CRL.M.C. NO. 307 OF 2020
DECEMBER 19, 2022
Sanjay Relan and Ms. Smitee Relan, Advs. for the Petitioner. Satish Kumar and Devashish Bhadauriya, Advs. for the Respondent.

**ADV MEGHA** ALL RIGHTS RESERVED.

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Independent director, who is not a signatory shall not be liable for cheque bounce in case of general complaint Delhi HC

FEMA, BANKING & INSURANCE : Where applicant had been arrested in complaint case filed by ED under sections 3 and 4 of PMLA, considering fact that applicant had taken a specific defence that he had been trapped in such organized crime and that trial was likely to take considerable time, applicant was to be released on bail.
■■■

HIGH COURT OF CHHATTISGARH
Dhiraj Sao
v.
Enforcement Directorate Government of India
DEEPAK KUMAR TIWARI, J.
MCRC NO. 7468 OF 2022
SEPTEMBER 30, 2022

Section 45, read with sections 3 and 4, of the Prevention of Money Laundering Act, 2002 – Offences to be cognizable and non-bailable – Applicant filed application for grant of bail in connection with his arrest in complaint case filed by Enforcement Directorate under sections 3 and 4 alleging that applicant was in receipt of proceeds of crime from one Pakistani National for carrying out different criminal activities and deposited same in bank account of other co-accused and applicant had received commission – This was 2nd bail application on behalf of applicant – Earlier bail application had been dismissed as withdrawn – It was found that applicant was in custody for more than 2½ years and investigation in respect of other offences commenced after knowledge of registration of schedule offence in 2013 – Thus, investigation started belatedly and complaint was filed after more than 5 years, and that schedule offence had been finished and till so far Special Court had not framed charges under PMLA – For schedule offence, applicant had been in jail for more than 8 years and was granted bail under section 389 of CrPC – Whether considering fact that applicant had taken a specific defence that he had been trapped in such organized crime and further considering statement given by applicant under section 50 of PMLA Act and that trial was likely to take considerable time, applicant was to be released on bail – Held, yes [Para 7]

CASE REVIEW

Alok Kumar Agrawal v. Directorate of Enforcement 2021 SCC Online SC 556 (para 7) followed.
CASES REFERRED TO

Bhunesh v. State of Haryana 2022 Live Law (PH) 151 (para 5), Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation [2013] 7 SCC 439 (para 5) and Alok Kumar Agrawal v. Directorate of Enforcement 2021 SCC Online SC 556 (para 7).
B.P. Singh and Anil S. Pandey, Advs. for the Applicant.

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PMLA HC allows bail to an applicant who had specifically taken defence that he was trapped in an organized crime

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
S. ABDUL NAZEER; J., B.R. GAVAI; J., A.S. BOPANNA; J., V. RAMASUBRAMANIAN;
J., B.V. NAGARATHNA; J.
CRIMINAL APPEAL NO.885 OF 2019; December 05, 2022
Sukhpal Singh Khaira versus The State of Punjab

COURTS OBSERVS THAT:

“I. Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other coaccused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?

The power under Section 319 of CrPC is to be invokedand exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced.
Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.

II. Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated
from the main trial?
The trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial till its conclusion.

III. What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?”
(i) If the competent court finds evidence or if  application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.

(ii) The Court shall thereupon first decide the need or otherwise to summon the additional accused and
pass orders thereon.

(iii) If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.
(iv) If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.
(v) If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
(vi) If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.
(vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.
(viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial.
(ix) If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re-hearing.
(x) On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.
(xi) Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.
(xii) If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier;
(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused.

In that view, the following substantial questions of law were raised for further consideration and the matters were placed before Hon’ble the Chief Justice of India for constitution of a Bench of appropriate strength to consider the questions raised. Hon’ble the Chief Justice has accordingly constituted this Bench to consider the questions raised, which read as hereunder: –

“I. Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other co accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?
II. Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
III. What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?”
7. In order to answer the above questions, we have heard Shri P.S. Patwalia, learned senior counsel for the appellant and also Shri Puneet Singh Bindra, learned counsel who appeared on behalf of the appellant in the tagged matter. Shri S. Nagamuthu, learned senior counsel has assisted this Court as Amicus Curiae. Shri Vinod Ghai, Advocate General appeared for the State of Punjab while
Shri A.K. Prasad, learned Additional Advocate General appeared for the State of U.P. Shri S.V. Raju, Additional Solicitor General has appeared for the Union of India since a case is said to have also been registered against the appellant under the Prevention of Money Laundering Act, 2002. We have also heard Shri Ashish Dixit, learned counsel who appeared for the Intervener-Prosecutors Association.
8. The gist of the contention put forth by Shri P.S. Patwalia, learned Senior Counsel is as hereunder: –
Order summoning a person (appellant herein) as an accused under Section 319 of CrPC was passed at a stage when the trial had already concluded and even judgment and order on sentence had been pronounced. It is contended that the said order is, therefore in violation of Section 319 of CrPC and Hardeep Singh (supra), wherein in Para 47 it was held that power has to be exercised before
pronouncement of judgment. It can only be exercised during the pendency of the trial, which is a stage anterior to the date of pronouncement of judgment. In fact this is also consistent with Section 353(1) of CrPC, which states that after perusal of the evidence, the judgment is to be pronounced after termination of trial, and therefore, Section 319 of CrPC mandates that the power can be
exercised only during trial and it follows that once trial is concluded and judgment is pronounced, the Court cannot exercise power under Section 319 of CrPC at that stage. Contending that it can be simultaneous is also equally violative of Section 319 of CrPC and the law laid down is clear that it has to be done before judgment. In a nutshell, if an accused is to be summoned, it has to be done when the trial is alive. The moment trial is concluded and the matter is kept for judgment, then the stage for exercising power under Section 319 of CrPC goes and the Court thereafter becomes functus officio. When the trial is pending, the Court can add an accused under Section 319 of CrPC but the moment the trial concludes and judgment is pronounced, then no proceedings remain before the Court. When the Court pronounces the judgment acquitting or convicting the accused, thereafter, no proceedings which commenced with the filing of the original charge sheet remain pending. It is also contended that it is not a mere procedural violation, rather, substantive violation since the power is circumscribed by the stage during which it can be exercised, i.e. inquiry/trial.
9. The gist of the contentions urged by Shri S. Nagamuthu, learned Amicus Curiae is as follows:-
Before taking cognizance under Section 190 of CrPC and after pronouncement of judgment, Court has no power under Section 319 of CrPC and in view of Hardeep Singh (supra) the trial court does not have the power for summoning additional accused when trial with respect to other co-accused has ended and judgment of conviction has been rendered on the same date. In Sessions Trial,
accused can be acquitted by an order of acquittal and if accused is acquitted either under Section 232 or 235 of CrPC, by passing an order or pronouncing a judgment, the proceeding gets terminated. While, if the accused is convicted, proceeding still continues because he is to be heard on sentence and he is entitled to lead evidence at that stage. Therefore, when accused is convicted, trial is
terminated after sentence is passed. Section 353 of CrPC should be understood in this background and so, it cannot be argued that after arguments are heard, trial gets terminated.
Evidence which have been brought on record during inquiry/trial including evidence collected during investigation such as FIR, Section 161, Section 164 statements, cannot be treated as evidence for the purpose of Section 319 of CrPC. Applying this, it will emerge that the evidence recorded in a separate trial held against the other accused cannot be considered as evidence in the present case. But, in the split up case (bifurcated) where there is a separate trial, and during the course of that trial, if any evidence comes on record against a person who is not already an accused, based on that evidence alone, he can be arrayed as an accused under Section 319 of CrPC. When a person is summoned as an additional accused, it is the discretion of the Court whether to charge and try two
or more persons together in the same trial.

As per Section 319(4) of CrPC, as against the newly added accused, trial should be a fresh trial. However, if there is joint trial, fresh trial should be conducted against all the accused including the existing accused. In such an event, evidence already recorded is no evidence against the added accused in view of Section 273 of CrPC. In a case, there cannot be two sets of evidence, one against the
existing accused and the other against the added accused.
As a consequence, evidence already recorded is no evidence against any accused including the existing accused. Fresh trial is to be conducted.

Shobhit Chaudhry adv

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SUKHPAL SINGH KHAIRA-PDF-THE LAW LITERATES

Leave Granted:

Civil Appeal No.3788 of 2022 (@ SLP(C) No.63 of 2022), D/09.05.2022.

Bharat Kalra
Vs
Raj Kishan Chabra

Civil Procedure Code, 1908, Order 8 – Rule 1 – Written statement – Time limit for filing

of written statement – Not mandatory. (Para 3)
Civil Procedure Code, 1908, Order 8 – Rule 1 – Written statement – Delay in filing – Can
be compensated with costs but denying the benefit of filing of written statement is
unreasonable. (Para 4)

Case refer :

Kailash V. Nankhu & Ors.’ reported in 2005(2) Apex Court Judgments 72 (S.C.) : 2005(2)
Civil Court Cases 532 (S.C.) (Para 3)

Saba Hasan (adv)

For Judgment Click here –

delay ws mandatory

http://thelawliterates.com/wp-content/uploads/2022/12/delay-ws-mandatory-.pdf

M.L.AGGARWAL HOSIERY PRIVATE LIMITED vs M/S SHIVANI ENTERPRISES CRM-A-1293-MA of 2017 [Harnaresh Singh Gill, J. ]

[ PUNJAB & HARYANA HIGH COURT ]

Section 378(4) CRPC NI ACT Sections 138 and 142 Dishonour of cheque Acquittal Grant of leave Case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so that it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests.

It is also relevant to mention here that the criminal conviction entails enigmatic and stigmatic exposures and experiences and thus it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature – Therefore, considering the above mentioned facts and legal positions, it would not be unjustified and completely misplaced to say that the complainant has miserably failed to prove if the impugned cheque has been issued against the discharge of any enforceable debt or liability.

Thus, in view of the totality of the circumstances and the settled position of law, the case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so that it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests. It is also relevant to mention here that the criminal conviction entails enigmatic and stigmatic
exposures and experiences and thus it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature.

Therefore, considering the above mentioned facts and legal positions, it would not be unjustified and completely misplaced to say that 4 of 5 the complainant has miserably failed to prove if the impugned cheque has been issued against the discharge of any enforceable debt or liability.
Preponderance of probabilities lies completely in favour of the accused. Further, the case of the complainant is required to rest on hisown leg and the same cannot be allowed to be bypassed in acasual and cosmetic manner.

Preponderance of probabilities lies completely in favour of the accused. Further, the case of the complainant is required to rest on his own leg and the same cannot be allowed to be bypassed in a casual and cosmetic manner – No merit in the present application, the same is dismissed

alka singh

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M_L_Aggarwal_Hosiery_Private_vs_M_S_Shivani_Enterprises_And_Anr_on_30_January_2020

CLICK HERE FOR THE JUDGMENT PROXY COUNSEL

SHOULD BE TREATED AS A MAIN COUNSEL

Delhi High Court observers that the Further, it is noticed that in the District Courts, junior counsels, who appear from the chambers of the counsels who file vakalatnamas, are reflected as “Proxy Counsel”. From this, it is not clear as to whether the junior counsels, who appear, are ready to assist the Court or not. The term “Proxy Counsel” ought to be used only when the counsels, who appear, are not able to assist the Court in the matter or are merely seeking an
adjournment. Junior counsels, who work in the filing counsel‟s chamber,

and are aware of the facts and assist the court, ought not to be described as proxy counsels. In the practice of law, courts have a duty to encourage junior counsels who may not have filed vakalatnamas and ought to hear them if they are ready to assist the court.

They cannot be simply treated as proxy counsels, as such a treatment, is not only discouraging to such junior advocates but also creates delays in the dispensation of justice.

When junior counsels appearing before the court are prepared and are ready to assist, they ought to be heard and effective orders can be passed. Filing counsel or the counsel in whose favour the client has given the vakalatnama ought to encourage junior advocates and counsels to make submissions and argue matters. Of course, there is a word of caution. There are some orders such as withdrawal of a suit, recordal of settlement in a suit, etc., which essentially require the filing counsel to be present. Except in such situations, court proceedings can continue with the appearance of junior counsels so long as they have the necessary express/implied permission to make submissions from their seniors. When junior counsels working in the chambers of filing counsels appear and assist the court, instead of describing them as `proxy counsels‟ alternative terminology such as “___, Advocate appearing for Ld. Counsel for the Plaintiff/Defendant” can be adopted. Only in case a junior or other counsel who is completely unrelated and/or unprepared in the case, the terminology of „proxy counsel‟ can to be used. This would also enable junior counsels to ensure that they are not merely taking passovers and adjournments but also get prepared in the matters and are ready to make submissions.

CLICK HERE TO SEE THE NOTIFICATION OF DELHI HIGH COURT

ARRANGEMENT OF MENTIONING AND HEARING OF URGENT MATTERS DURING WINTER VACATION

1. It is hereby notified that Hon’ble the Chief Justice is pleased to nominate the following Hon’ble
Judges for hearing urgent matters, if any, during ensuing Winter Vacation 2022:­

2. Hon’ble the· Chief Justice is further pleased to pass the following orders. for being followed during
the course of winter vacation:­
I. The Hon’ble Judges will sit in Division Benches and also sIngly to- hear urgent Civil and
Criminal matters and such other matters as may be placed before them as per the schedule of
dates given above.
ii. Ordinarily the Hon’ble Judges will sit in Court on Monday, Wednesday and Friday and such
other days as they may think fit at 10.30 A.M. The sitting may continue for the next
succeeding day if matters fixed for any day are not finished on that day.
iii. If one of the Hon’ble Judges is not available on any day for any unforeseen reason, the other
Hon’ble Judge may sit alone subject to the condition that the Hon’ble Judge shall not dismiss
the Division Bench matters.