Happy New Year'2009

Wish all the viewers & Followers of " Sweet Monet" a very happy & prosperous new year'2009 in all respect.

Words of Hope

The government in its mid-year economic review said we should be prepared for growth of about 7% in FY09, while it expects declining trend in inflation to continue. However, it feels that outlook on economy continues to be one of cautious optimism, and macro-economic fundamentals also continue to be strong. Meanwhile, on commodities front, Indian government sees that commodity prices will fall further on global slowdown and this fall will offset impact of falling exports. The government said FY09 additional fiscal stimulus is seen at 2% of GDP and we need to push pending reforms for 8.5-9% growth, adding that it sees higher non-tax revenue from spectrum allotment. “We may have to forego fiscal consolidation aim for FY09.” However, foreign direct investment or FDI inflows are seen strong despite growth slowdown." “There are signs of slowdown in growth across sectors and the financial crisis will moderate capital inflows and export growth,” it added. The government said fall in rupee is stronger in offshore non-deliverable forward or NDF market and huge short sale in rupee in offshore market is impacting the spot rate. “Money market situation continues to be fluid.” It feels that the final figures of fiscal, revenue deficit may top budget aim. Commenting on the banks, the centre said, the Reserve Bank of India or RBI will keep a track that tight liquidity doesn't hit credit availability. It said that cut in reverse repo may help increase liquidity; also there is a need to check parking of funds by banks in reverse repo. Also there has been no proposal to ban futures in more commodities. However, global financial crisis impact is seen higher than what the International Monetary Fund or IMF had estimated. But a positive ray of hopes comes in as job losses due to global financial crisis will be limited in India. Meanwhile, the statistics show that banks' exposure to five failed global financial companies stands at USD 1.08 billion as on September 30. Public sector unit or PSU oil retailers' FY09 interest burden is seen at Rs 8,100 crore, while the borrowing of the PSU oil retailers came in at Rs 1.15 lakh crore at November-end. On similar lines, C Rangarajan, Chairman, PM's Eco Advisory Council, said, “It is true that the Indian economy is not exposed directly to the toxic assets and the distressed assets of the developed world. Therefore the impact is not direct and the indirect effect is through trade and capital flows, which will lead to a slowdown.” Arvind Virmani, Chief Economic Advisor, said won't be suprised if growth falls to 7% in FY09 economy will see effect of stimulus measures in last qtrthis particular mid-year review. Meanwhile, Suresh Tendulkar, PM Panel Head, said, pressure on rupee is 'abated' and foreign exchange reserve position is comfortable, while FX capital outflows seem to have stabilised. He said, PM is closely monitoring micro, small and medium enterprises or MSME problems as high rates last year accentuated MSME problems. “However, current account gap may widen versus previous year and export-linked sectors are bound to be affected much more than expected,” he added. Tendulkar said “Inflation can fall to 4-6% by March-end and RBI can cut repo, reverse repo rates by 100 bps each.” He said a next fiscal stimulus package is based on feedback and the panel is assessing response of first fiscal stimulus package. Here is a verbatim transcript of Abhijit Neogyy’s comments on CNBC-TV18. Also watch the accompanying video. We had the Prime Minister and the Finance Minister in the recent past talking about scaling down the growth targets from a high of 9% to 7-7.5% - that was the kind of range. Today the government has informed Parliament in the official mid-year review of the Indian economy and the growth is likely to be at the bottom of that range around 7%. And that is completely understandable given the slowdown in exports; we have seen the dip happening in October and also the dismal Index of Industrial Production (IIP) figure, which is reflected in manufacturing growth all around. I think what is going to happen and we have seen first stimulus package accompanied by monetary policy, we are of course expecting a second stimulus package. What we do understand is that the impact of that stimulus package on the fiscal deficit would be 2%. If there was a base target of 3% of fiscal deficit, and 2% is added on that, which means that we are going to end up this year with about 5% fiscal deficit. But, then fiscal deficit is not an issue in the days of a slowdown, a package to prop up economy is something, which is going to be expected. The big question is that will monetary policy also accompany it. The economic survey or the mid-year review sort of indicates that aggressive monetary policy action will continue to be the RBI’s policy stance, in fact the mid-year review growth, so far is to say that the cost banks are parking a lot of their liquid cash with the RBI, there is a definite case for cut in the reverse repo right away. So, yes the macro economic fundamental, the savings and investment rates right now seem to be okay more than 35%. But if this state of the economy continues to be like this, even the savings rate and investment rates could actually come down. So, it is a state where infrastructure spending, as well as a stimulus package could prop up the economy. That is accent of emphasis of this particular mid-year review.

Words from Big Dada's

Investment Guru Rakesh Jhunjhunwala, Raamdeo Agrawal of Motilal Oswal and Sanjoy Bhattacharya, Founder and Partner, Fortuna Capital, spoke to BSE and NSE member Ramesh Damani and tried to find the answer to an important question––Who creates wealth? Who destroyed wealth? Damani introduced the discussion thus - "There is a Chinese symbol that consists of two characters, the top character has danger, and the bottom character has opportunity. Too often, when one focuses on danger, one forgets the opportunities present. The question before the panel and the house today is that in this current fall in the market, one of the great lifetime opportunities to load up on bargain, blue-chip stocks for the next 10-20 years or is the market blinking red and going into a deep freeze. That is the theme – the good, great and gruesome companies that we will select." According to Agrawal, while tapping a company as a good investment opportunity, “What is important with great companies because the longevity of these companies are perpetual - 50-100 years; what is important is not to buy them young or mature, but to buy them at the right price – at an attractive or reasonable price not at a throwaway price. You will never get it. So, it is not important to catch them young. Once it is demonstrated that they are great then later it can be made part of the portfolio at any point if you can find them at a reasonable price.” Bhattacharya is reasonably sure that India will have an aggregate output growth at something in double-digits for the next ten years, unless something goes seriously wrong. “Even if America goes into a recessionary environment for the next 3-4 years, and that is much more than what people think right now –– people don’t think that it is going to last till 2011-2012 and despite that, India will have the ability for a number of reasons, which are very well known- like demographic, domestic, consumption number of things. I see aggregate demand here growing at 12-13%. It is given that it is going to grow at 12-13%; I don’t think there is a need to be obsessed with those. I think the one thing that I would for is cash flow.” Jhunjhunwala said, “I always say it is important what you buy and it is not important in what size you buy. India is (one of) those who (would) see humongous growth for the next twenty-five years. So if you pick up some companies who are going to cater to Indian markets and you have some business superiority and you feel available at reasonable valuations, I think this is the opportunity in that time when it is the darkest and everybody is so pessimistic that you get the best investment opportunities.” Here is a verbatim transcript of the exclusive interview with Rakesh Jhunjhunwala, Raamdeo Agrawal and Sanjoy Bhattacharya on CNBC-TV18. Also watch the accompanying video. Q: Great, good and gruesome as you put it. What are the characteristics of great companies? Agrawal: A great company, to put very aptly, is like a bank account where you get very high rates of interest, and that is say 55-60%. That is the kind of productivity of capital, which is very high. Once it starts with that, over the years, it keeps increasing. So the entry barrier or competitive advantage or popularity of the product keeps increasing over a period of time, and doesn’t remain static. That is called a great company. So, profits are high and profitability keeps growing over a period of time. That is a great company. Q: But great companies have to be caught young otherwise they give mediocre returns. For example buying Lever in 1993? Agrawal: What is important with great companies because the longevity of these companies are perpetual - 50-100 years. What is important is not to buy them young or mature, but to buy them at the right price – at an attractive or reasonable price not at a throwaway price. You will never get it. So, it is not important to catch them young. Once it is demonstrated that they are great then later it can be made part of the portfolio at any point if you can find them at a reasonable price. Q: But the fall as such that we have had globally and in India, you would be able to find a lot of great companies now, because stock prices are down 60-80% on average? Agrawal: The first thing is, great companies are not that many that you can come across every day. There are I would say, out of 500 companies about 50% on tangible assets not on their declared return on networth. There are only 10 companies that are more than 50% return on tangible assets. So, going by Buffett’s example of See’s Candies, there are only 10 companies that can be today be called as acknowledged great companies. So, all those companies where I have looked at their valuations are definitely much more reasonable than what they used to be 10 years back, but are nowhere at a throwaway price at which we could buy See’s Candies at about 7-8 P/E multiple or 20% earnings on his purchase price. Right now you get dividend at best 3 or 4%. I think the best you can get is – Hero Honda is about 13 times, which is 7-8% earnings yield, and Glaxo at about 5%, HUL at about 4%. Q: One thing that startled me about the study was that growth is not necessary for a great company, it is the cash flow, it is the dividend, it is the return on equity. Agrawal: Yes because once you have started a great machine of earnings and dividends because what happens is whatever is earned for example 1,000 crore is earned or 500 crore is earned, it doesn’t need even a penny of that to grow into the future. Even if it grows at 10%, entire 500 crore can be given back to you by way of dividend like Hero Honda. It doesn’t need any capital for growing. So all the profit they make 1200-1300 crore, technically they can pay it out to the shareholders. What more you want, why do you need the growth? The issue is that the extreme of dividend – it literally becomes a growing bond maybe growing at 8-10%. The issue is, are you able to buy it at a reasonable price. Q: So the trick is to find a great price? Agrawal: Yes. Q: You were talking about how you visualize great companies, can you summarize them for us? Jhunjhunwala: I think the first thing is that there should be huge untapped market because I don’t agree that – See's Candies would be one example out of 1,000 companies which have given great returns to investors I think 999 would have grown. Second thing I feel is that the great companies are very much returned to the capital profile of a company what is the capital investment - the capital investment they need everyday in order to grow their earnings and also their working capital profile because Nestle and Lever have partly been able to get this kind of return on capital employed because they are able to squeeze their suppliers and they are able to sell everything on cash. So the working capital profile. Secondly, I think that every great company has some kind of a business superiority, it could be a brand - I think in Bharti’s case it is marketing, so there is some kind of a business superiority - from title also it is marketing. So there has to be entry barriers into that business. See's Candies is selling for forty years because See's Candies has some loyalty from its customers and that loyalty cannot be recreated by another client otherwise there would have been a capital society or where somebody will compete and some will create it. I always say it is important what you buy and it is not important in what size you buy, so it is not great buying of bond at 25 times earnings 4% yield and I personally feel that maybe it is three-four or five or fifteen-twenty years but India is (one of) those who (would) see humongous growth for the next twenty-five years. So if you pick up some companies who are going to cater to Indian markets and you have some business superiority and you feel available at reasonable valuations, I think this is the opportunity in that time when it is the darkest and everybody is so pessimistic that you get the best investment opportunities. When I bought Titan, its marketcap was above 125 crore and its debt was 600 crore. Today its turnover will be 4,000 crore this year and its debt will be less than 600 crore and I envisage it everybody is going to buy watch ten years later, everybody is going to buy jewellery and everybody is going to wear these things. So there is going to be huge demand. So I think this is a real time and it is very easy to read about Mr Warren Buffet and his great accomplishments which undoubtedly are but to find those circumstances in which we can recreate what he has done is extremely dismal because those circumstances will not exist and secondly we don’t have the discipline. What Indian investor lands up doing is buying multinational companies who have the worst corporate governance in this country, Satyam is nothing. Q: What would you look for in a great company? Bhattacharya: It is very difficult to add to what they said and to directly address your question, he made this point - we live in a country where growth is bound to be there, why this obsession with growth in a country where nominal GDP is growing at 12.5-13% anyhow and will grow. I think there was and the will there is an interregnum here and that interregnum should not be treated as hanging permanently. So, I think yes you are right that this year it may not but if you look at a broader sweep of India’s economy- we can argue about the numbers. But I am reasonably sure that this country will have aggregate output growth at something in double digits for the next 10-years, unless something goes seriously wrong, which I simply cannot visualize right now. Q: Globally also you do not visualize anything wrong? Bhattacharya: Which affects India- I don’t think that even if America goes into a recessionary environment for the next 3-4 years, and that is much more than what people think right now. People don’t think that it is going to last till 2011-2012 and despite that India will have the ability for a number of reasons, which are very well known- like demographic, domestic, consumption number of things. I see aggregate demand here growing at 12-13%. It is given that it is going to grow at 12-13%; I don’t think there is a need to be obsessed with those. I think the one thing that I would for is cash flow. To answer your question there must be a tremendous focus on cash flow. I think the lesson of 2008- if I may and have never able to expect it, as well as Mr. Jhunjhunwala would have expressed it but I'll give this a shot is to focus on cash flow rather than newsflow - I think that is the big difference. People I don’t think they have ever looked at cash flow. I think the other thing, which is very important and I am surprised it hasn’t been brought up so far. But to my mind it has primacy- if you want to buy great companies and being reflective of the Indian investor this is not something important, we keep on paying tribute to Buffet and great investors but we don’t seem to recognize this. It is very important that capital allocation is rationa -- if capital allocation is irrational; then no matter how good the business, no matter how much cash flow it generates, it is not going to be a great investment. I don’t want to get into specifics but there is a business in this country; it is a fabulous business, first in the country to get into it, absolute money machine, doesn’t require any incremental capital employed, had a great start, they generate a large amount of free cash flow but they just blow it up. They buy fixed assets, they buy a building for themselves to live in rather than rent it. They invest in bonds and debentures, they find ways to deal with the cash flow rather than pay dividend and that is what has prevented that company from achieving great business. It has greatness thrust upon it but could not get there. Q: A stock you have often mentioned – Bharti – good, great or gruesome? Agarwal: It’s at the high end of good and yet it hasn’t achieved greatness, because they have not paid a single penny, yet. There is huge cash flow; operating cash flow is more like 15-20%. But they have huge capital expenditure ahead and it’s a debt free company. In fact take pride that they don’t pay dividend so. Q: Telecom same business, Bharti becomes a great company and TTML you say is a gruesome business why? Agarwal: TTML is a gruesome company, the underlying business is mobility and both of them have same business underlying. Q: What did TTML do wrong? Agarwal: We have seen it all in the last five years. But they missed the first mover advantage, they got into wrong technology. Jhunjhunwala: Bharti paid no price for the Delhi license. They paid a heavy price for the Bombay license. Agarwal: TTML has only one circle which is very limited access which is Maharashtra and Goa, so they have very limited access and they have Sigma which is a handicap technology at least to start with. So everything went wrong with that company and this business requires a lot of capital, they kept on pumping capital and one good thing is that they had the Tata name. Jhunjhunwala: So it was a bad thing that they would go and keep pumping capital. Putting good money on a bad thing. Agarwal: They are so nice that they kept pumping capital we were so good that when they asked for a rights issue at Rs 21, we again gave them. So instead of getting dividends, we have been giving them money. And I wished them all the best. Q: The macroeconomic environment in India is improving considerably, isn’t it? Jhunjhunwala: Improving? I don’t know maybe next year there will be no oil subsidy, I don’t know what the government is saying. As per my calculations if today Oil is 45/bbl, Indian Basket is 40/bbl, oil companies today are making a profit after providing for subsidy of at least Rs 50,000 crore at 47 to the dollar. What was said in June that there was a loss of Rs 2.45 lakh crore. So, Rs 3 lakh crore is going to come in, this country is going to be saved, this has such consequential effects, sulphur has gone from USD 800 to USD 90. I don’t think there will be a fertilizer subsidy more than what they have provided for in the budget in this year. Cumulatively they estimated at the peak fertilizer and fuel subsidy was going to be about 3 lakh and eight thousand crore. Next year it maybe not needed at all. This will have a very big effect on the value of the rupee, on government finances, it will have a very big effect on liquidity because someone in the country had to pay this 3 lakh eighty thousand crore. The government may not have included in the budget but IOC had to get that money from somebody, if they don’t get from government bonds then from government banks. So if you don’t pay out Rs 3 lakh eighty thousand crore out of this country what will happen to the liquidity? After that there are interest rates, one thing is that you have reduced excise duty across the board by 4%, commodity prices have halved. If I say that commodity prices constitute 50% of every product sold in this country, even if you pass on 40% of the benefit that is going to come to the producers, if commodity prices will sustain you will see a reduction in prices between 20-25%. And no manufacturer in his right mind today is going to look at volumes, at price he is going to look at volumes. After that if interest rates crash and I am buying an asset with interest rates, it will give me a cushion of 5-7% to 10% over the life of the asset in any asset that I buy. This is not Japan nor is it America. Q: This is not a corporate holiday for profits. If commodity prices, interest costs going down why should there be a holiday for corporate profits? Agarwal: I am not talking about individual group of companies. In aggregate, when you talk about India Inc, in 2003 the India Inc made – I am talking about all listed companies –about Rs 30,000 crore. In 2007-08, they made 3 lakh 11 thousand crore on a GDP of about Rs 40 lakh crore. This year say Tisco made a profit of about 10,000 crore, last quarter itself they made about Rs 5,000 crore. To replace Rs 10,000 crore you need many midsize companies. Jhunjhunwala: In your study for earnings growth, you said you had 17% compounded growth over the last 15 years. But you have 12% normalised GDP growth. So to expect the corporate sector not to have growth of more than 5% and in between you have to exclude the companies who have been newly listed. In 1993, ONGC was not listed; today ONGC’s profits are Rs 15-20,000 crore. So as a percentage of GDP the profits have also gone up because of the newly listed companies. So the profit growth that we have had over a period of time has not been anything out of the extraordinary. When you have 12% normal GDP growth and it is the efficient and large companies which are listed. So I don’t think it is anything exemplary which is not sustainable. Agarwal: 17% is not a problem but in the last five years you had more than 25% of earnings growth for the entire India Inc, 10 times in 5 years, at aggregate level. I am not disputing what Titan can do.Q: Commodity prices are going down; globally we are heading into deflation – what are the risks of that?Bhattacharya: I don’t think that people will produce oil if it stays at USD 25 per barrel. I don’t know why it is taken for granted that oil will remain at this price for ever. Q: Because Saudi Arabia and Venezuela need money to finance their own budgets?Bhattacharya: But it is cartel. Q: And cartel as we know has never worked. Bhattacharya: But in oil if the OPEC decides for some reason and this is a recessionary environment, the demand for oil is coming down and let’s not forget that United States of America is the largest… Jhunjhunwala: But no one is predicting. 88 million barrels is the daily consumption and they are going to cut 4 million, no one is predicting a fall of more than one million next year. So it’s peculiar we don’t know anything of the commodity market we should ask the Mr. Jim Rogers, he knows best. Bhattacharya: I think all predictions are a complete waste of time, neither of us knows what is going to happen in the next 6 months. So I don’t think we should get too carried away with forecasting. The value of forecasting is mainly to provide entertainment which is the part of the reason we are here but I don’t think we should get carried away with the idea of forecasting. Mr Agrawal has a very valid point and this is proven across economies, across the world, across economic environment there is mean reversion in corporate profits. This is a truth, nothing grows to the sky. If profits are grown at 25% for the last 5 years and taking Jhunjhunwala’s point if that they can grow at 17-18% because you have a nominal GDP growth of 12%, that 25% to grow for 25 years we will have to have a period when it grows at 5% for the next 5 years and that is the period we are unfortunately looking at because they have grown 25% in the last five years. So its like heads and tails, it is very unlikely though you can have it.. Q: Are you predicting? Bhattacharya: No, not predicting I am pointing out something that people learn in statistics which sadly in this country people have not had much exposure to, useful statistics. You can have 10 heads in a row equally you can have 10 tails in a row but the distribution of heads and tails, suggest that those are outliers, so we shouldn’t bank on outliers to make our judgment come right. Q: So flip a coin since you don’t like prediction - 7,700 on Sensex will hold?Bhattacharya: I think that is completely irrelevant to what you need to do today. Q: Which is what?Bhattacharya: Basically buy, There are bunch of really high quality companies and even Rakesh has made this point, a bunch of really good companies available at very attractive prices, unless you are thinking about next 3 months what is the scare about buying these companies? If you have a 12-18 to 24 month outlook, you can buy high quality, really great businesses. And I will get to the level because I am no where near greatness, so I will talk about less great companies which are available at stunning prices. Take a company like Blue Star it is available at a stunning price in relation to what it has done - contracting, project, core air conditioning, heating etc it has compounded seven years return on capital employed of 37%, it has grown profits in excess of 27%. It has never had in the last 10 years a year in which absolute profits have grown and there has been no dilution in the last 10 years. Q: Just for disclosure of Sebi you have an ownership? Bhattacharya: Yes I do have a ownership. Q: Will 7,700 on Sensex hold?Jhunjhunwala: I don’t know about 7,700 because if commodities dip, we have very high weightage for the commodities but I think the broad market is going to hold and that is what the bond market is showing for the simple reason that I have never seen such pessimism in my life, I have never seen such depression in my life. Q: Have you seen such optimism like we saw in January? Jhunjhunwala: I have seen the 1992s one – this one is nothing. In 1992 it was worse. 1992 was 60 times earnings and fortunately there was no scam this time. That was the only difference. There optimism in 2001 – McKenzie said Indian software industry will grow 100%. Infosys profits will double every year. I have never seen such kind of optimism. I don’t think we are anywhere near that kind of optimism and the Indian economy and India as a nation and we as a market had far greater places for this bull market in 2008 although there was a lot of excesses then what we had in 2000 or 1992. Q: 50 Indians own 40% of the GDP – that’s pretty optimistic in terms of valuation. But your call is 7700 will hold – that’s what you said in your study? Agarwal: I am pretty certain to the extent that’s why I have put the word probably because still one could be wrong 5-10% but 90% probably 7700 as a bottom. Q: Is that generally in historical terms – great periods of wealth creation are followed by wealth destruction? Agarwal: This has been characteristic of Indian stock market. I though a year or two back that this particular bull market is the first bull market led by earnings growth. So the foundations are solid. But again the story is the same because this time though you have solid earnings but the PE multiple came back all the way down from 30 to 10. The masses look at the price and not the value and that’s where the problem is. Jhunjhunwala: People talk about deflation, lower inflation – they compare us with Japan, America, and Europe – they’re all over 80s, we have just had puberty, we are young economy. Here my driver if he gets something cheaper, he increases the amount of shirts he buys or he increases the amount of foods he eats. So price deflation in India according to me is going to be a big spur to consumption. One of problem Q: Jim Rogers was quoted on television saying that equities is going to be an impaired asset class over the next 5-10 years. What would you say to that?Bhattacharya: I think he was referring to the western world. But I read Mr. Rogers’ comments in the light of what is happening in Western Europe and America because there your fundamental problem is that demand has been seriously impaired. The ability to stimulate demand is the challenge.Q: So, India will be an island?Bhattacharya: I don’t think we’ll be an island. But I think what is very important, very fundamental and I would say it applies to large parts of Asia – I wouldn’t say even India – I would venture to say there are many countries in Asia and that includes countries like China, Korea, I think what is going to happen is that increasingly we are going to see these countries become far more competitive in terms of their abilities to displace other manufacturers and providers of services. That increased competitiveness is what is going to lead eventually to a change in the way that these companies prosper in terms of their corporate profit, in terms of their ability to gain dominant positions and eventually the way they are valued.

See 20-30% sell-off in mkts in few months: Shankar Sharma

Shankar Sharma, Vice-Chairman and Joint Managing Director, First Global, does not expect the current rally to continue for more than a week. “The market would see a huge sell-off by mid-December, which may continue till January end.” He estimates a 20-30% sell-off in markets during the next few months and sees a durable rally only after the next fall. Sharma foresees an earnings downtrend in FY10. “We see that fiscal year being worse than FY09 for the markets. Sharma feels the monetary easing would not boost the market significantly and said the markets may at best rally for 1-2 days. He added that the fiscal package under discussion was too little to make a difference. He believes the elections could compound the current situation and would be a dampener. Here is a verbatim transcript of the exclusive interview with Shankar Sharma on CNBC-TV18. Also watch the accompanying video. Q: One of you recent reports was talking a pullback or a temporary pullback in equities. Has that come and gone with that five-six day rally that we saw just a few days back or do you think its still pending? A: We issued this report a week before the last and globally markets did rally about 10-12% from the lows India however, didn’t participate and that’s in partly due to the terror attacks. There’s probably a week more for the rally to continue. From the middle of December the markets will begin to go back into the realization that this quarter will be an absolute washout quarter for any company anywhere in the world. So, whether you take a company in technology or in retail or a company in metals or infrastructure or automobiles or anything almost across the board you will see completely washed out earnings. Markets will not discount this substantial slowdown in advance so I reckon somewhere in the middle of the month i.e. this month the market will begin to get a sense of how bad their numbers are going to be. I wouldn’t be surprised if a few major companies across the world came out and issue earnings warnings that they are not going to be able to meet the numbers that they had forecasted for this quarter. Therefore we see the market beginning to sell-off probably in the middle of December and this could continue I reckon to the middle of January or end of January. This month could be as ugly as October because I do not think the markets have factored in how bad the numbers in this quarter are going to be, globally. The October sell-off was largely due to the Lehman bankruptcy and how it affected the credit market. But the credit market effect on the real economy will now be visible once these numbers begin to come out and we all know anecdotally how bad numbers in India will be for large industries and how bad they will be for many international companies. So I think the rally probably has a few more days to go. Beyond that it will be very brave to conjecture as the rally continues. Q: What is your sense of how ugly it could get in December-January? Do you think it is a revisit of the October lows or could it get worse than that? A: India is pretty close to that, not on the intra-day basis but on a closing basis. We are about 7-8% away from the lows that we saw recently. So the October lows have gone on a closing basis. Looking at the way the world is shaping up, I wouldn’t be surprised if markets witness a 20-30% sell off in the next couple of months. That leads me to believe the markets will probably see a more durable rally because one of the strange things about this bear market has been that the rallies have not been durable, they haven’t even lasted for 30-45 days, they are over in 5-10 or 15 days. A durable rally will probably succeed a pretty severe fall which begins in the next few days time. The markets have not fully discounted the bad numbers anywhere in the world. Analysts’ estimates are still way too high and I think this quarter will knock some sense into all those numbers. Q: In the short-term, how high would you rate the chances that the market actually settles into a range is very boring for the next few weeks does nothing? A: I don’t think any range has lasted more than a few days. The markets have been very strongly trending markets this year as they were in the last four-five years. The trading ranges have been in consolidation phases before markets breakout in whatever direction they have been trading in. So when there was a bull market, the consolidations were very short. There were very sharp, short pullbacks and then markets would continue going up. This time, while pullbacks may not have been that sharp, there have been few pullbacks of a few days duration and then they continue going down. So, I don’t think there is any trading range or any such situation developing at all. Merely because the markets don’t do much for three days, it starts to build theories that it is in a trading range. However, I don’t think that is a real possibility. Q: There is the promise of course now of fiscal action and monetary action coming together. How much does that translate into for the market in real terms you think? A: Maybe a day’s rally, maybe two days. One should remember this is like a morphine shot. You need greater and greater morphine shots in order to kill the pain and that is the way this thing works. The first one will lead to greater euphoria and each successive injection whether it is monetary or fiscal – in economics they call it the Law of Diminishing Marginal Utility and that is the way markets look at such stimuli packages. So globally, the first ones (packages) did a lot of good in terms of market action and then successively markets say that nothing is working and it is just another stimulus package. In India, we haven’t seen anything on the fiscal side yet. So that may help for a couple of days maybe three days but it is just very little – A USD 10 billion packages is nothing. I don’t think it conveys a very good picture to the world. China is putting up a USD 550 billion package and here we are announcing a USD 10 billion package. It doesn’t seem right. They may as well not announce it and on a subterranean basis — keep doing what you are doing on a slightly accelerated basis — why make a big song and dance about something which is like 2% of what China is doing? So it’s better not talk about it. Q: How are you reading 2009 now if there is a big fall or big leg down coming around the January numbers after that how do you see the rest of 2009? A: The numbers in FY10 will be substantially worse. The slowdown has accelerated post the middle of the calendar year 2009. So we have had more or less five-six months of reasonable earnings growth and reasonable GDP (Gross Domestic Product) growth coming and that’s not going to be replicable for the rest of the financial year and the calendar year of 2009. FY10 will definitely be a down year in terms of earnings for India. I cannot see which sector would lead the earnings growth. On an aggregate basis there might be a few sectors which will deliver positive earnings growth. But you will not see the entire market deliver that largely because big companies like Reliance or the auto pack or the metal pack none of those companies are going to have earnings growth. You can only debate on how much lower the earnings will go but growth is going to be very dim for a large part of the market. Some of the companies like telecom may grow but that’s not going to be enough to offset the decline in earnings we see from a lot of the cyclical companies. So I am pretty certain and it's early days to start making definitive forecasts in FY10. But our take is, you will definitely see a down earnings in FY10. Globally, it will be pretty much the same case; corporate earnings that was strong for the last five years will be decimated. Sector wise; semiconductors are hurting, retail is hurting, banks are obviously gone. The world’s earnings composition also changes in every phase of a bull market. The last five years the global market was driven largely by the commodity cyclical and they became large part of the indexes worldwide and they became even larger part of earnings growth worldwide. Now that sector is gone, oil is at USD 45 per barrel and it can easily hit USD 20 per barrel in the next six-eight months time. Exxon Mobil, iron ore or steel were all the big drivers of earnings growth but those are not going to come back for many years in terms of earnings growth. You might well see a situation where they might make losses 12 months from now because it is our view that commodity prices will breach the lows of 2002. I am talking about the absolute commodity prices, which means that the stocks of those commodities so whether it is BHP Billiton, Rio Tinto or Exxon Mobil, Companhia Vale do Rio Doce (CVRD) or Indian metal companies should all trade lower than their prices of 2002-03, in terms of the absolute stock price. When the commodity price breaches the lows of 2002 the stocks of those companies will trade even lower because these companies have upped their risk in the last five years. They have gone and made acquisitions, they have leveraged their balance sheets up. Rio Tinto has got USD 46 billion of debt and that is a lot of debt built up in the last few years and about USD 8-10 billion is coming due in the next 12 months time. These companies are far riskier than they were at the trough of the commodity cycle. So when you hit another trough, these stocks will go down even lower and therefore the earnings will obviously be linked to the trough. I don’t see how that earnings growth is going to be replicable out of the same pack. So may be some other pack has to emerge. It is too early in this bear market to start talking of the sector, which balances out the negatives of the commodity cyclical. Q: At the very start of the conversation, you mentioned autos, what would you do with that whole pocket? A: Autos are symptomatic of what the real problems are. So, as far as the real economy is concerned, these numbers are mind-bogglingly terrible numbers and I don’t see how this thing will revive or turnaround that quickly. Companies like a Hero Honda or a Maruti don’t have much leverage. They are not going to be in a financial stress if the market continues to be as bad as it is. But you have other leveraged auto companies and I just fear that leverages with these kind of poor numbers, interest cost, interest burden none of those things are a good cocktail. They are a very lethal cocktail and the sector is in deep strife. Q: There is one view which is the optimistic view that maybe June-July 2009 onwards as we get into Q2 or Q3 FY10, you see the economy rebounding in a bit or earnings probably hitting some kind of a trough and the markets probably starts some kind of a recovery. Is that too optimistic a view in your eyes? A: I do not think that’s too optimistic. It only depends on what the trough is and what the trough for the market is. If the market goes to 5,000 and rebounds to 8,000 or 9,000 which is where we are now would you call that a rebound or would you call that as nothing move on point to point basis. So all of this will depend on where we are at that point in time when the so-called recovery starts. I am not even sure it will be that easy to achieve because we are still in the deceleration mode and economies do not necessarily have that big swings in their growth rates as corporate earnings do. It’s like a super tanker; they will start climbing and they will start coming down. They can go down for 18 months or 24 months before maybe another leg of the upstream in GDP growth starts. But what I don’t think people are getting especially in India is how serious this whole global problem is. Across the world in every single country people have understood the depth of the problem and they understand the contours and magnitude of the problem the world facing is. We still do not understand that this has nothing to do with India. There is huge global unwinding going on, it’s an unwinding of the excesses build over many decades and to say that those excesses can be purged and now the excess are being purged in fact you are putting excesses upon excesses. Governments are printing money. So basically you are borrowing from the people to give to private hands. There is no equity left in the world; you cannot build Debt Empire without having equity and the only people in the world who have any equity or the sovereign wealthy fund from West Asia and with oil at USD 45 per barrel their fiscal balances are just going to go because the last man standing was Saudi. Saudi Arabia needed USD 50 per barrel to balance their book. At USD 45 per barrel they have also gone. Russia went at USD 65-70 per barrel. In most other countries the cost of production was far higher and their quality of crude was lower. Therefore, they need higher crude prices for them to break even. There is a huge global problem. This is not a garden variety walk in the park recession. So there no point talking about Tata Steel or Bharti or Reliance Industries or any of our stalwart companies when there is such a huge problem across the world. I have been trying to figure out what’s the end game to this and I have been speaking to a lot of very intelligent folks across the world in the last three-four months, meeting them as well and nobody can figure out where the light at the end of this tunnel is. So India is a small part of whole equation its not the whole jigsaw puzzle. Just looking at the way the world is going, you have pretty much the entire world in recession now. Looking at the China output numbers, looking at India CMIE (Centre for Monitoring Indian Economy), everything is pointing to a contraction of industrial activity. To hold out hope that the markets will have a great second half of 2009, lets get through 2008 first, lets get through the next three months of 2009 first and we will start worrying about 2009 end. There are plenty of more things to worry about now than to worry about second half of 2009. Q: There is that fear though on how long this pain is going to last. Just on the subject of global recession the fear now is it goes all the way into 2011 and who knows the kind of body blows things like our currencies might have to take a side from the equity market? A: You are absolutely right, the dollar continues to decimate most currencies. You can see how badly the GBP (Great Britain Pounds) is faring and it is our view that the doomed currency tag now belongs to the GBP rather than to the dollar because we see the GBP going to 120-125 against the US dollar. If that happens on the same lines you will see the euro trade at parity against the dollar and euro zone has its own problems. You needed a good recession in the euro zone for the internal differences to come out and you can hear so many discordant notes, Ireland wants to breach all fiscal norms, Spain and Italy will be shouting from the rooftops now. So specially the southern European nations and Ireland, the new entrants, they will all start to feel huge pain, the populations there will start to feel huge pain and they will all demand to ease the stifling policies of the ECB driving their internal economics. At that point what happens to the Euro? The US is in deep trouble but just because others are in deeper trouble relative to the US - because US’s problems are known others are not that well known - we just see the US dollar strengthening which means that emerging market currencies will also follow in tandem. You don’t just have an equity market problems, you have a currency problem as well. Across the world, very few currencies will be able to hold against the dollar maybe the Swiss Franc and the yen might and maybe one or two others but by and large that is the other big problem, a strong dollar helps nobody. That is the worst news we could have on top of an already bad situation but whether we like it or not we have to live with a strong dollar for the next few months if not a few years and that seems paradoxical but that is the way markets are. Unless you have the dollar weakening and weakening substantially, there is going to be no bull market and emerging markets. That is a simple one line, simplistic way of looking at emerging markets. Through the '90s the dollar was more or less the strong currency and there was only one market to play which was the US market. EMs went nowhere, India went nowhere, Russia was a dog market, Asia went through some degree of upswing between '94 and '96 and then they all got crushed. From 2002 when the dollar weakened, EMs did well. The dollar strengthens, EMs don’t do well. It is as simple as that. Q: In the next few months we will also have elections out here, is that a sideshow or do you see that having any material bearing on our market performance? A: It could compound an already uncertain situation because policy making then just freezes up – it freezes up in a best of times in India but before election obviously by law you cannot take too many big policy decisions, you cannot give out too much business and I think that time probably will come by January and February. After two-three months into the new government’s tenure, there will be the same kind of paralysis of policy making. So overall the elections will be a big dampener. courtsy: moneycontrol ;Thu, Dec 04, 2008 at 10:05 , Updated at Fri, Dec 05, 2008 at 18:22 Source : CNBC-TV18

Mumbai Picture As on 30/11/2008

• What World Paid: 183 dead, 327 injured
• What They Paid: 9 Killed, 1 Arrested
• What Govt Says It Averted: 5000 deaths

Law relating to dishonor of Cheques in India

The Negotiable Instruments Act, 1881 is an Act to define the law relating to promissory notes, bills of exchange and cheques.

This Act has been amended several times commencing from 1885 till 2002. The most important amendment is by Act 66 of 1988 and by virtue of chapter XVII was introduced by the Banking, Public Financial Institutions and Negotiable Instruments laws (amendment) Act, which came into force from 01-04-1989.

The introduction of Chapter XVII i.e., sections 138 to 142 of the Negotiable Instruments Act, for the prosecutions relating to the offences of dishonor of cheques.

The dishonor of cheques became popular and frequent in courts of law and the law relating to the same developed in such a rapid pace covering almost several aspects which may arise in the day to day disposal of such cases by the courts.

Chapter XVII of Negotiable Instruments Act has been lastly amended by Negotiable Instruments (Amendment and Miscellaneous provisions) Act 55 of 2002 and the same has been came into force w.e.f., 06-02-2003.As per the latest amendments the imprisonment has been extended to 2 years.

The issuing of notice within 30 days after the receipt from the bank regarding return of cheque as unpaid and further after amendment to Sec.142 of N.I. Act, the cognizance of complaint may be taken by the court after the prescribed period i.e., beyond 30 days after receipt of notice by drawer, that the complainants to satisfy the court that he had sufficient cause for not making a complaint within such period.Sec.138 to 142 of N.I. Act deals with:

i) Sec.138 deals with the offence of dishonour of cheque and the punishment there for.

ii) (a) Sec.139, deals with presumption that the holder of a cheque in discharge in whole or in part of any debt or liability.

(b) Sec. 140, the defense which may not be allowed in any prosecution under Sec.138.

The drawer that he had no reason to believe when he issued the cheque that it may be dishonored on its presentation.

(c) Sec.141, deals with offence by a company prescribing different burden and onus of proof between persons in-charge of and responsible to the company for the conduct of its business and persons, with whose consent or connivance or due to neglect on his part, the offence had been committed, may be stated to fall under ‘evidence aspect’.

iii) Sec.142, deals with the cognizance of an offence prescribing the method or mode of preferring a complaint and the forum before which the complaint has to be preferred, besides prescribing the period, with in which the complaint is to be preferred from the time of accrual of the cause of action, not withstanding anything contained in the code may be stated to fall under ‘procedural’ and ‘limitation’ aspects.

The amendment made to N.I. Act in 2002 also includes the insertion of new sections 143 to 147. The new sections deals with power of court to try cases summarily, mode of service of summons, evidence of affidavit, bank slip as prima-facie evidence and offences to be compoundable under N.I. Act.

I. Cheque

Under the N.I. Act, a cheque is an instrument which is negotiable by delivery. The drawer is discharged when payment is made in due course. In simple terms, this means that when cheque is tendered there is a presumption that payment would be realized in due course, and hence the date of payment is considered to be the date on which the cheque is delivered, regardless of when the cheque is actually presented for payment.

The origin of cheque can be traced even from 17th century onwards in England. In the case of Stedman vs. Gooch, it is observed that payment by negotiable instrument is a conditional payment, which means that if the negotiable instrument is dishonored on presentation the creditor may consider it as wastepaper and resort to its original demand.

It has been observed in “Benjamen on Sale”, 8th edition, it was stated that payment takes effect from the delivery of the bill, but might get defeated by the happening of the condition of nonpayment at maturity.

In “Byles on Bills”, 20th edition the position was summarized as ‘A cheque, unless dishonored is payment’. Under the Common Law of England, the rule is to the effect that the sending of a cheque in payment of debt is subject to the condition subsequent that the cheque must be met on presentation.

 In the High Authority of Royal Bank of Scotland Vs. Tottenham, 1894 LXXI Law Times Report 168, it was held that a cheque is contract between the parties, and it is for a judge at the trial to construe that contract by reading what is written upon it.

II. POST-DATED CHEQUE

The post-dated cheque becomes a cheque under the Act on the date written on it and the six months period has to be reckoned for the purpose of sec.138 of N.I. Act from the said date.

A post-dated cheque cannot be presented before the bank and as such the question of its return could not arise. It is only when the post-dated cheque become a cheque with effect from date shown on the date of cheque.

A post-dated cheque carries with it an implied notice to the effect that for the present there are no deposits, but at the same time assuring that the funds will be available by the date it becomes due (1956 (1) Madras Law Journal 471).

Post-dating of bills of exchange is allowed both in English and American Law.

There is no prohibition in the Indian Acts against post-dating and promissory note which is post-dated is thus an effective negotiable instrument through it cannot be sued upon till after that date passes.

III. STOP PAYMENT OF A CHEQUE

In spite of the civil remedy, Sec.138 is primarily meant to prevent dishonesty on the part of a drawer.

Sec.138 draws presumption that one commits the offence if he issues the cheque dishonestly and cheque has been drawn and issued to the payee and the payee as the presenter of cheque and thereafter, if any instructions are issued to the bank for non-payment and the cheque is return to payee with an endorsement ‘payment stopped by drawer’, it amounts to dishonor of cheque (1996 (2) SCC 739) =AIR 1996 SC 2339.

Even if a cheque is dishonored because of ‘stop payment’ instruction to the bank, Sec. 138 would get attracted (1998 (3) SCC 249).

The luxury of “stop payment” instructions by the drawer to cover-up real insufficiency funds would no longer be available to drawer as per the law of the land.

IV. RE-VALIDATION OF A CHEQUE

There is no provision in the Negotiable Instruments Act or in any other law which stipulates that a drawer of a negotiable instrument cannot re-validate it.

It is always open to a drawer to voluntarily re-validate a negotiable Instrument, including a cheque (AIR 2002 SC 38).

V. LEGALLY ENFORCEABLE DEBT

It is clear from the explanation to Sec.138 of the Act, that the cheque covered by the said section must be relatable to enforceable or debt which must be existing as on the date of issuing of the cheque. For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.

In 1997 Crl. Law Journal 1942 A.P., it was held that on the date of issuing of cheque material was not supplied by complainant and the goods was found not of agreed quality.

The cheque was presented third time after accused intimated about rejection of material. It was held that there was no infirmity in the reasoning of trial court that on the date of cheque there was no existing debt or liability and as such no offence was constituted u/s. 138 of N.I Act. 

Where cheque issued as security, on dishonor of such cheque, not offence under Sec.138 of the Act (2001 (2) RCR (Crl.) 75 MP) also see 2002 (3) Crimes 145 (Raj).

CONDITIONS TO INITIATE CRIMINAL. ACTION U/S.138 OF N.I. ACT

a) A cheque must have been drawn by a person on an account maintained by him for payment of any sum of money to another person from out of the account.

b) The cheque must have been issued for the discharge, either in whole or in part, of any debt or other liability, though, in the absence of proof to the contrary, it shall be presumed that it was issued for the same.

c) The cheque shall be returned by the bank unpaid –

i) Either because of the reason insufficient funds to honor the cheque; or

ii) Because it exceeds the amount arranged to be paid from the account by an agreement with that bank.

Thus, the dishonor of the cheque by the bank under the above mentioned circumstances shall constitute an offence and the offender is liable to be punished u/s.138 of N.I.

Act with imprisonment, which may extend to 2 years or with fine, which may extend to twice the amount of cheque, or with both.

CASE LAW ON DISHONOUR OF CHEQUES

1. Account closed: Account closed was held to be the offence u/s.138 of N.I. Act (AIR 1999 SC 1952). The cheque returned on the ground of close of account is an offence (1998 (2) Law Summary 461). Where the cheque was dishonored on ground of account closed, the accused cannot escape from liability of the offence (1998 (2) ALD (Crl.) 286 Kar).

2. Issuance of post-dated cheque and closing account: Where the accused issued the post-dated cheque and had also closed his account in the bank, in such a case he is liable to be prosecuted under Sec.138 (1998 (2) ALD (Crl.) 177 Bom).

3. Incomplete Signature: Dishonor of cheque because of incomplete signature on cheque of drawer. Held: did not attract sec. 138 - (2002 (7) SCC 531).

4. Cheque issued by partner: Complaint u/s.138 of N.I. Act against firm and its partners. No allegation in the complaint that the partner was in-charge of and was responsible to the affairs of the firm – held: not maintainable against the partner (2002 (7) SCC 655).

5. Offences committed by a company: Where an offence is committed by a company, either company can be prosecuted or the person-in-charge of the company can be prosecuted or both of them can be prosecuted (1998 (2) Crimes 409).

6. Discharge of father’s debt: Father of the accused, but not the accused owes debt to complainant. Complainant obtained cheque from the accused by force. Cheque was not issued in discharge of father’s debt. Accused cannot be prosecuted (2003 (6) ALD (NOC) 64).

7. Cause of Action: Once notice is issued under Sec.138, failure to initiate prosecution would forfeit the right to prosecute (1998 (7) Supreme 20).

8. Object of issuing notice : The object and purpose of issuing notice to the drawer is to give information to the person who had issued the cheque that it was dishonored and give him an opportunity to make good the amount within 15 days of the receipt of the information (1997 (88) Company cases 433).

9. Notice once issued, Chq. cannot be presented for collection: It is settled that the payee is free to present the cheque repeatedly within its period of validity any number of times, but once notice has been issued the drawee to avail the cause of action arising thereupon and file the complaint within the stipulated period (2002 (1) ALD (Crl.) 397 (AP) (1998 SCC (Crl.) 1471 followed).

10. Notice by fax and Regd. post: Notice can be sent by fax and mode of sending notice not to be restricted to post or messenger (AIR 1999 SC 1609).

11. Omission of Chq. No. in notice: The number on the cheque has no relevance in a proceeding u/s.138 of N.I. Act. Sec.5 and Sec.6 of the Act does not specify that, the cheque or bill of exchange should bear a number. There is also nothing in Sec.138 of the Act to show that the number of the dishonored cheque also should be mentioned in statutory notice or in complaint (2004 Cr. LJ 712 AP).

12. Advocate did not sign notice: The mere fact that the advocate for complainant did not sign the notice, may not make it invalid 1996 Crl. LJ 2264 Kar).

13. Issue of second notice: Cheque issued by the respondent was dishonored – presented again – again dishonored. The notice issued by the complainant at the time of first dishonor was not served on respondent/accused, but the fact remains that the notice has been issued for second time. Therefore, cause of action stood terminated (2003 (117) Company Cases (Madras).

14. Accused refused to receive notice : Where accused have refused to receive notice, even then complaint to be filed after expiry of 15 days from the date of receipt of notice (1997 (3) crimes 445). In case of refusal to receive the notice, it amounts to acceptance of notice and date of refusal to receive such notice shall be treated as the date of receipt of such notice. In such case the period of fifteen days has to be computed from the date of refusal (AIR 1996 SC 330; AIR 1989 SC 630).

15. Evading notice: Where accused had evaded service of notice relating to dishonor, it will amount to constructive notice (2001 (2) ALD (Crl.) (Mad) 137).

16. Postal endorsement ‘not found’: Notice was duly given but the same was returned unserved with postal endorsement ‘not found’. If a registered letter addressed to a person at his residential address does not get served in the normal course and is returned it can only be attributed to the addressee’s own conduct (1998 (1) CCR 111).

Once the letter is delivered to the post office he has no control over it. It is then presumed to have been delivered to the addressee under Sec.27 of the General Clauses Act (AIR 1989 SC 630).

17. Civil Suit & Criminal Complaint: Filing of civil suit and filing of criminal complaint are not alternative remedies and they are different types of rights (1994 Criminal Law Journal 887). The mere pendency of a civil dispute will not oust the jurisdiction of a Criminal Court from taking cognizance of an offence on a complaint under Sec.138 of N.I. Act (1998 Crl. LJ 559 = 1998 (2) ALD (Crl.) 300 Guj).

18. Stay of suits: Pending of criminal matters would not be an impediment to proceed with the civil suits. On the other hand, the courts are rarely stay the criminal cases on only when the compelling circumstances require the exercise of power (1996 SCC (Crl.) 466) = 1996 (3) SCC 87).

19. Sec. 138 of N.I. Act & Sec. 420 of I.P.C.: When the cheque was dishonoured for insufficient funds, such person issuing a cheque is liable for offence of Sec. 138 of N.I. Act but not u/s. 420 of IPC (1989 Cuttack Law Times 719).

20. Time barred debt: Where cheque itself was issued for a time barred debt, there cannot be conviction under provisions (1997 (2) Crimes 658). Where the loan was taken in 1985 and cheque was issued in 1990 and the loan is barred by limitation, drawer of cheque cannot be prosecuted (1997 (1) ALT (Cri.) 509.

21. Payment after receipt of notice: Where accused made tender of amount after receiving notice, cannot be visited with any consequences for non-payment (1994 Crl. Law Journal 2768).

22. Refer to drawer: The bank endorsement “refer to drawer” also may fall within the ambit of the provisions of Sec. 138 of N.I. Act. - 1994 Crl. LJ 2874; 1995 Crl. LJ 3828; 1994 (1) Crimes 606; 1995 Crl. LJ 3098.

23. Request not to present the cheque: When after issuance of a cheque and before presentation for encashment, a request was made by the husband of the accused not to present the cheque. 

In spite of the same it was presented and a return. Complaint is not maintainable (1997 (1) Crimes 55); 1996 (3) Crimes 385 (Mad) = 1996 (4) CCR 92 (Mad).

24. Dismissal of complaint for default: Dismissal of complaint not proper (2002 (7) SCC 726).

25. Dismissal of complaint for default and restoration: Where the complaint is dismissed for default, in restoration application, the complainant must assign a valid reason as to what prevented him from coming to the court by the time when the case was called (1998 BC 63 (AP).

For securing the ends of justice, the Magistrate is empowered to restore the complaint filed under Sec.138 of the Act (2001 Crl. LJ 2821 Kant). However, contrary view prevails.

The order of dismissal of a complaint by a criminal court due to the absence of the complainant is a proper order (AIR 1986 SC 1440). A second complaint is permissible in law if it could be brought within the limitation imposed by the Supreme Court in the case reported in AIR 1962 SC 876.

26. Dismissal of complaint and appeal thereof: Dismissing complaint due to non-appearance of complainant resulting in acquittal of accused. Revision is not maintainable and only appeal lies to High Court u/s.378 (4) of Cr. P.C. (II 2003 CCR 387 HP).

27. Default of fine u/s.138 of N.I. Act. : Sentence of imprisonment in default of payment of fine – Imposition of imprisonment and challenge thereof. Sec.138 does not provide for such sentence. Hence, sentence in default of fine set aside (2006 (9) SCC 784.

Note-I tried to write this article with lot of outside references as I am not a lawman. However, readers are requested to notify if there are any mistake/wrong information they found. This blog will not be held responsible if anyone take legal steps based upon the fact stated in this article. You are kindly requested to consult with your lawyer for this.

Courtsy:ramanamurty9967@yahoo.co.in

Sebi spikes ICICI charge

The capital market regulator has rejected ICICI Bank’s charge that a cabal of market manipulators had hammered its stock recently. The Securities and Exchange Board of India (Sebi), which trawled data on stock trades between September 8 and October 8, said there was no evidence of manipulative trading. On September 17, K.V. Kamath, managing director and CEO of ICICI Bank, had complained to the regulator that certain vested interests had mauled the stock after spreading rumours that the bank was in trouble. The private sector bank had also filed a first information report with the Economic Offences Wing of the Mumbai police against a bear cartel of brokers. Although it did not name anyone, the bank said it had conducted investigations to identify the source of misleading statements. “None of the major sellers were observed to be placing orders successively at lower price. There was no pattern observed regarding placement of successive orders at lower price by sellers to hammer down the price. There was no pattern of booking intra-day profits by major clients or brokers during this period,’’ Sebi said today. It added that the trading patterns in the stock were consistent with the shareholding of ICICI — where FIIs are in a majority — the general buying and selling behaviour by FIIs and the broad movements of the market during this period. A spokesperson for ICICI Bank did not wish to comment on Sebi’s observations. The regulator said the share prices of several leading financial services companies had suffered declines against the backdrop of a global crisis in the financial sector and liquidity fears. ICICI Bank had alleged that a malicious rumour had been spread to the effect that some of the top management were selling their stock in the bank. The ICICI Bank stock fell 12.5 per cent from Rs 640 on September 15 to Rs 560.30 on September 17. According to Sebi, the shareholding pattern of ICICI Bank for the quarter ended June 30 showed that around 68 per cent of the shares were held by FIIs/foreign entities. Similarly, figures for the next quarter that ended on September 30, 2008, showed that around 65 per cent of the shares of ICICI Bank were held by FIIs/ foreign entities (ADR), while the rest was with the Indian public, including institutions.

Some views & Facts over Investments

The crisis which started from US sub prime mortgage market has ultimately grown into a full-blown global credit, liquidity & confidence crisis. The risk has moved from an individual level to mortgage lenders to corporates to investment banks to overall financial system and even countries. India has surely not remained untouched by the unprecedented global financial crisis. Globally, equity markets have witnessed heavy correction & Indian Equity Market is no exception. Sensex has corrected by over 57% so far in 2008. Due to liquidity crunch, FIIs have withdrawn $12bn from the Indian markets (CYTD) after infusing a record $17.4 bn in calendar year 2007. Being one of the best performing markets in 2007, Indian equities have seen one of the sharpest corrections. On the macro front, however, India is on a better footing compared to the start of the fiscal year. With crude correcting by over 55% from its peak of $147/bbl and other commodities also correcting (by 40-50% FYTD), inflationary expectations have fallen sharply. Inflation has fallen from peak of 12.9% in August to ~11% & given current scenario, it is expected to fall to single digit by end of December, to 6.5-7.5% by end of FY09 and further to 5% by first quarter of FY10. India's Current Account & Fiscal Deficit will also improve with fall in crude oil. With inflation cooling off, RBI seems to have rightly shifted its focus from price stability to economic growth. It has aggressively cut Repo Rate by 100bps and CRR by 250bps in a very short span. It has further relaxed ECB norms, made NRI deposits more attractive and announced quasi-cut in SLR. Globally, Central Banks are aggressively fighting the crisis. However, despite best efforts, the global economic situation will still deteriorate with US entering a phase of recession. India, though not completely decoupled, but is adequately insulated and is in a better position to cope with the crisis. India is a domestic-driven economy with relatively low leverage and low export dependence. Indian corporates are in good shape, having enjoyed a number of years of high profits and this coupled with low leverage, would allow them to weather a slowdown. The infrastructure boom in India is likely to continue, although at a slower pace led by near-term funding issues. Consumption comprises two-thirds of India's GDP and is likely to sustain its average growth rate led by increasing exemption limits for personal income tax, rising of tax slabs, farm loan waiver and the he 6th Pay Commission. India's GDP growth may moderate to 7-7.5% in FY09, however, what one needs to understand is that even with a 7% growth rate, Indian will remain one of the fastest growing economies globally. Policymakers have also indicated their willingness to support economic growth. The stage is set for monetary easing which has, in the past (FY01-03), led to growth revival, though with a lag. Given the rapidly changing dynamics in global financial markets, we expect RBI to be more explicit in its analysis of the domestic scenario and give its near-to-medium term guidance and outlook on economic growth, inflation, exchange rate stability & measures to ensure longer-term stability of the Indian financial sector. Indian market valuations have become attractive at 10xFY09E. It is much below its historic average of 18 times. Indian market has been commanding premium over valuations of other Emerging markets due to a more diversified earning base, higher Returns on Equity (RoE), consumption driven growth story & low reliance on exports. Recently, Indian valuation premium viz-a-viz other emerging markets have narrowed, thereby making India more attractive. Current times are surely tough for all of us, however, it is important to maintain our calm in these times & strategize our investments with long term horizon. If we analyze Sensex return for the last 15 years & keep a 10 year investment horizon, then Sensex has always delivered positive returns. We being long-term investors in the market, we should not be too much concerned about short-term market movements since despite the current correct, Sensex has still delivered an attractive 21% CAGR growth (FY03- 24th Oct'08). BSLI laid adequate emphasis on the quality & liquidity of it’s investment assets & you can be rest assured that your money is in safe hands and are invested in good quality assets. Every investment/productive assets needs time to deliver positive results. It is like planting a seed & watching the tree grow & yield fruits or watching an infant grow into an adult. Finally, a good investment strategy and timely execution of the strategy are important for achievement of goals. It is up to the investors to ensure that they develop the right strategy & execute it in a timely manner to reap maximum gains. That's what professional fund managers, are here to help you with.

Demat demand dries up

The market meltdown has spooked investors who were sitting on the fence, waiting for the right time to invest. Stocks have tumbled nearly 55 per cent from its peak in January this year and new investors are wary of entering the market. The growth in the number of new demat accounts, a must for stock trading and a measure of retail participation, has significantly slowed down after June and particularly in the last couple of months. The total number of demat accounts with the country’s two depository service providers, National Securities Depository Services Ltd (NSDL) and Central Depository Services Ltd (CDSL), grew from 1.20 crore at the end of December 2007 to 1.47 crore at the end of June this year. This means 27 lakh new accounts were opened during the six-month period. Investors’ demat accounts with NSDL and CDSL together stood close to 1.5 crore as of November 8. That is, an addition of less than 3 lakh new accounts since July. “First-time investors come in droves when there are high-profile initial public offerings (IPOs). This happened early this year during the public offering of Reliance Power,” said Prithvi Haldea of Prime Database, a Delhi-based firm that tracks the primary capital markets. In January, more than 13 lakh demat accounts were opened. “But since the price crash in the secondary markets in the second half of January, a number of big IPOs were withdrawn. The primary market has almost dried up with no big companies planning to float an initial or follow-on public issue till the conditions stabilise,” Haldea said. The number of demat accounts opened in the first three months of the current calendar year was 21.1 lakh. It was 5.3 lakh between April and June, and only 1.95 lakh between July and September. According to figures available with CDSL, the depository service provider could open only 3,000 demat accounts in October. Total number of investors’ account with CDSL was 53.92 lakh at the end of September and it went up to 53.95 lakh at the end of October.Data for NSDL is not available. The total number of investors’ account with NSDL as of November 8 stood at 95.82 lakh against 95.03 lakh in September — an addition of 79,000 accounts in two months