J.T.V சட்ட ஆலோசனை மையம்

09/06/2023

11/01/2020

Cheque Bounce Case: Accused shall have to deposit 20% of amount in qus to appeal against order, held The Apex Court has held that the accused shall deposit 20% of the amount in question to appeal against the order in a cheque bounce case. The Supreme Court Bench of Justice Ashok Bhushan & Justice MR Shah has also reiterated that Section 148 of the Negotiable Instruments Act can be applied with retrospective effect. Under this section, courts can order defaulters to deposit an amount during the pendency of a cheque bounce case.

The case
The appellants in the case were partners in an infrastructure company. The Respondent No.1 was also a partner of the firm. When the respondent retired, a check of Rs 45,84,915 was issued to him by the firm against the part payment of the retirement dues. As many as 63 other cheques were issued by the appellant in favour of the respondent. All of these cheques were dishonoured. The respondent filed 28 complaints under Section 138 of the NI Act before the Judicial Magistrate, Ist Class, Panchkula, which held the appellants “guilty for the offence punishable under Section 138 of the NI Act.”

The appellants were convicted & sentenced to undergo imprisonment for two years & to pay jointly & severally an amount equal to the amount involved in the present case i.e. cheque amount plus 1 per cent of this amount as interest as well as litigation expenses.

The appellants appealed against the order before the Sessions Court which suspended the previous sentence while asking them to deposit 25% of the compensation amount. The appellants then moved the HC which dismissed the appeal. The Top Court also dismissed their appeal.

However, later, the Additional Sessions Judge asked the appellants to surrender before the trial court, leading to a fresh round of litigation with the matter finally reaching the top court. The appellant’s counsel argued before the apex court that “the direction to deposit 25% of the compensation as directed by the trial court could not have been made under Section 148 of the NI Act. Section 148 of the NI Act having come into force on 01.09.2018 could not have been relied by the Courts below. Since, the complaint was filed in the year 2015 alleging offence under Section 138 of the NI Act which was much before the enforcement of Section 148 of the NI Act.”
20% Deposit
The SC had earlier observed in the case, “as per the amended Section 148 of the N.I. Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited & that such amount is to be deposited within 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the Appellant.”

On the question of suspension of sentence, the Supreme Court noted, “The Court which has suspended the sentence on a condition, after noticing non-compliance of the condition can very well hold that the suspension of sentence stands vacated due to non-compliance.”

The Apex Court said that “It is for the Appellate Court who has granted suspension of sentence to take call on non-compliance & take appropriate decision. What order is to be passed by the Appellate Court in such circumstances is for the Appellate Court to consider & decide. However, non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated".

11/01/2020

CURATIVE PETITION

- The curative petition is fairly a new concept in the Indian judicial system.

- It is the last judicial resort available for redressal of grievances in court which is normally decided by the judges in chamber.

- It is only in rare cases that such petitions are given an open-court hearing.

-The concept of curative petition was first evolved by the supreme court of India in the matter of RUPA ASHOK HURRA VS. ASHOK HURRA AND ANR (2002) where the question was whether any aggrieved person is entitled to any relief against the final judgment /order of the supreme court , after dismal of review petition.

-The supreme court in the said case held that on order to prevent abuse of its process and to cure gross miscarriage of justice , it may reconsider its judgment in exercise of its inherent powers. For this purpose , the court has devised what has been termed as a " curative petition".

- To entertain the curative petitions, the supreme court has laid down certain specific conditions.

1. The petitioner will have to establish that there was a genuine violation of principles of natural justice and fear of the bias of the judge and judgment that adversely affected him.

2. The petition shall state specifically that the grounds mentioned had been taken in the review petition and that it was dismissed by circulation.

3.The petition is to be sent to the three senior most judges and judges of the bench who passed the judgment affecting the petition if available.

4. If the majority of the judges on the above bench agree that the matter needs hearing.
Then it would be sent to the same bench (as far possible)

5. The court could impose " exemplary costs" to the petitioner if his pea lack merits.

06/01/2020

Husband is not bound to pay maintenance to a qualified wife who is sitting idle. The purpose of Section 24 of H.M. Act is not to extract money from the other party and the court should not be a forum to extract the money or to blackmail the other party.
Sec. 24 of the HM Act is not meant for supporting idle (Qualified) spouses waiting for ‘Dole’ to be Awarded by her husband.

Section 24 has been enacted for purpose of providing monetary assistance to such spouse who is incapable of supporting himself/ herself in spite of sincere efforts

Spouse well qualified to get service immediately with less efforts is not expected to remain idle to squeeze out his/her purse by cut in nature of pendent elite alimony.