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  Shubham Budhiraja [2]   On presumption of legally enforceable debt 1.     That once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque received the said cheque in discharge of a legally enforceable debt or liability arises against the accused   2.     The presumption contemplated under Section 139 of the NI Act, is a rebuttable presumption. However, the initial onus of proving that the cheque is not in discharge of any debt or other liability is on the accused/drawer of the cheque.   3.     The presumptions under Sections 118 and 139 of the NI Act can be rebutted by the accused examining the Income Tax Officer and bank officials of the complainant/drawee.   4.     The accused can rely upon the evidence adduce...

    Shubham Budhiraja [1]   Criminal Case registered against A & B under the NDPS Act. It is the Prosecution case that Ganja was found while raid at their houses where both A&B were found with packets of Ganja. This was video graphed as well. The CD was marked as exhibit with 65B Certificate and Videographer deposed as well. The Trial Court hold A&B as guilty whereas High Court set aside the judgment and directed for re-trial because both videos should have been played every-time when witnesses were examined to ask them about contents of it, which was not done. The Hon’ble Supreme Court held as under [2] :   1.     The CD is an electronic record and once the requirement of Section 65B is fulfilled it becomes an admissible piece of evidence, like a document, and the video recorded therein is akin to contents of a document which can be seen and heard to enable the Court to draw appropriate inference(s).   2.   ...

  Shubham Budhiraja [1]   A filed a suit for Partition against B. The Ld. It is the case of the Plaintiff that his grandfather had 2 sons, X&Y. The X had 2 wives, P&Q.   The first wife, P is the mother of A. The Second Wife, Q and his son, B are the Defendants. Based on change in revenue entries, B declined to acknowledge A’s joint possession in the property. To demand his share, A filed the Partition Suit. The Trial Court dismissed the suit whereas High Court in first appeal allowed the suit. Hence, Supreme Court. The Hon’ble Supreme Court held as under:   1.     In the present case, there is a paucity of documentary and contemporaneous material to conclusively establish the marital relationship between the deceased and the mother of the plaintiffs.   2.     The testimony of P.W.2 is the sole evidence adduced in support of the existence of such a relationship. Accordingly, the evidentiary value of the testimon...

    Shubham Budhiraja [1] Mr. A advanced a loan of Rs. 21 lacs to the partnership firm (X+Y). To discharge the debt, X issued a cheque in favour of Mr. A of the account maintained in the name of partnership firm. The cheque was issued in the name of firm and signed by X, Partner. The cheque got dishonoured as account of firm was frozen. The notice was issued against X and Y and accordingly complaint under section 138 NI Act was filed against X and Y. Neither the notice was sent to firm not the firm was made as accused in the complaint. The Hon’ble HC quashed the complaint the ground that while the cheque was issued on behalf of the partnership firm, no statutory notice was issued to the partnership firm and it was also not arraigned as an accused in the complaint. The Hon’ble Supreme Court held as under [2] :   1.     Even if we have to come to the conclusion that the juristic entity i.e., the partnership firm is the primary accused in the instant c...

      The Bank filed Section 7 IBC against Company-A which is the leader in glass industry. The NCLT admitted the petition and RP invited plans for resolution. The Company-B (2 nd largest) and Company-C submitted their plans. The plan of Company-B got approved however on account of proposed combination, it was mandated that approval of CCI must be obtained before filing of application before NCLT. The CCI approval was taken only after plan got approved. Both CCI approval and plan approval was challenged by Company-C before NCLAT.   However, the NCLAT upheld the plan. The Hon’ble Supreme Court in 2:1 held as under [1] : Shubham Budhiraja [2]   Literal interpretation of proviso   1.     The introduction of a proviso, specifically addressing those Resolution Plans with provisions for combination, and the use of the term ‘prior’ therein, makes it starkly clear that the intent of the legislature was to create an exception .  ...

  Shubham Budhiraja [1]   The Ministry of Corporate affairs directed the SFIO to conduct investigation into affairs of Company-A & its subsidiaries. Basis the investigation, the Union of India filed petition under section 241-242 alleging oppression mismanagement. The NCLT allowed UOI’s application to amend the petition which was allowed. Some parties objected to the amendment for reason that it is beyond the scope of what was allowed by NCLT. The NCLT rejected the objection. Aggrieved by the same, appeal filed before the NCLAT. The Hon’ble NCLAT held as under [2] :   1.     Rule 155 of the NCLT Rules, 2016 which contains general power of amendment. The above rule clearly empowers the Tribunal to permit to amend necessary amendment for the purpose of determining the real question or issue raised in the proceeding. Section 424 of the Companies Act, 2013 deals with procedure before Tribunal and Appellate Tribunal   2.     The above pro...