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2005 (12) TMI 611 - RAJASTHAN HIGH COURT
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... ... ..... y the prosecutrix at Mahila Thana would also shed some light on the controversy in issue. Similarly, the documents recovered by the police at the instance of the accused would be necessary and desirable for the purpose of the trial. Hence, the Learned Additional Judge should have exercised the power under Section 91 of the Code. 20. In the result, this petition is allowed. We quash and set aside the impugned Order dated 22.8.05. We further direct and the Learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City, Jaipur to call for the report lodged by the prosecutrix's father at Police Station, Murlipura, on 13.9.04, the alleged report lodged by the prosecutrix at the Mahila Thana on 28.10.04, and to call for the documents which were recovered at the instance of the accused petitioner on 30.10.04 such as photos, letters, ledger, and STD slips and to give copies of these documents to the petitioner within three weeks of the receipt of a certified copy of this order.
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2005 (12) TMI 610 - SUPREME COURT
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... ... ..... e respective transfer applications shall stand withdrawn to this Court. The records of the High Court be summoned through special messenger at the cost of the Coal India Limited, which may be deposited within one week from date. It is clarified that the present interim order will govern the transferred cases also. 11. Let all the ready Transferred cases and other Special Leave Petitions including Special Leave Petition (Civil) No. 23034 of 2005 and Civil Appeal No. 2972 of 2005 be posted for final disposal on 10.01.2006 at the top of the list. The learned Counsel appearing for the parties agreed that detailed written submissions would be filed on or before 09.01.2006. It is stated at the Bar that each side would take about three hours in completing their oral submissions. 12. The learned Counsel for the parties agree that no prayer for adjournment will be made and the cases of those who would make such a prayer, may be disposed of only on the basis of the written submissions.
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2005 (12) TMI 609 - SUPREME COURT
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... ... ..... us, we propose to dispose of this appeal by the following order 8. The impugned judgment of the High Court is set aside. Mr. Mukul Rohtagi, learned senior counsel, appearing for the Appellants requests that the Appellant, would make an application under Section 8 invoking the provisions of the 1996 Act seeking an order of reference for arbitration. Such an application shall be filed within, a period of two weeks from today. It shall be open to the Respondent to oppose such application on whatever grounds that are available in law including the ones urged and noticed in the impugned judgment. The civil court shall thereafter hear the parties and dispose of such application in accordance with law, preferably within a period of six weeks from the day such an application is , made. In the fairness of things, no further steps will be taken by the Bharat Merchants Chamber till the order of the city civil court. 9. The appeal is allowed in the above terms with no order as to costs.
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2005 (12) TMI 608 - MADRAS HIGH COURT
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... ... ..... e submissions contending that the Plaintiff has filed the Petition giving false information as if the Suit is pending. The maintainability of the Suit is also assailed contending that the filing of the Suit in City Civil Court, Chennai is a gross abuse of process of the Court. The merits of this contention cannot be gone into in this Revision Petition. Such arguments are to be advanced only before the Trial Court, which has seized up the matter. 17. For the foregoing reasons, the Order dated 20.09.2004 passed in I.A. No. 10477 of 2004 in O.S. No. 12449 of 1996 by the VII Assistant Judge, City Civil Court, Chennai is set aside and this Civil Revision Petition is allowed. I.A. No. 10477 of 2004 in O.S. No. 12449 of 1996 is dismissed. No costs. The connected C.M.P. No. 2828 of 2005 is closed. Learned VII Assistant Judge, City Civil Court, Chennai is directed to expedite the Trial and dispose of the Suit within a period of two months from the date of receipt of copy of the order.
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2005 (12) TMI 607 - CALCUTTA HIGH COURT
Dishonour of Cheque - money lending business OR not - Prayer for discharge - complaint lodged u/s 138 of the NI Act - demand notice - rebuttal of presumption - non-application of the mind of the learned Magistrate - violation of provisions of Income Tax Act, Indian Contract Act and Money Lenders Act - HELD THAT:- In the instant matter admittedly there was a cheque in the hand of the complainant and he was holder of the cheque and the said cheque bears the signature of petitioner. The said cheque was presented by complainant to his bank and it was dishonoured. The complainant thereafter sent demand notice to the accused in view of provisions of NI Act and the accused received the notice, but did not make payment of the dishonoured cheque within 15 days from the date of receipt of the notice. Instead he sent a reply denying everything and even denied issue of cheque in favour of complainant and taking loan from him.
The facts of denial of the matter and the allegations made by the accused can be considered by the Court of learned Magistrate only after full trial on the basis of both oral and documentary evidence to be adduced by both parties in the trial. After closure of complainant's evidence the accused would be examined u/s 313 of the Code, and thereafter, the accused would lead his evidence in support of his case and would try to rebut the presumption which is in favour of complainant u/s 139 of the NI Act.
After considering evidence of both parties at the time of delivery of judgment the learned Magistrate would reflect in his judgment and order whose case is believable, acceptable and has been proved. At this stage, there is no ground at all to quash the complaint case and to discharge the accused petitioner. The order of the learned CJM taking cognizance was perfect, proper and legal and it requires no interference. The order of the learned Judicial Magistrate, Is' Court dated 14.8.03 issuing process against the petitioner also was correct, legal and proper and the said order does not require any interference.
There is no ground to accept the submission of accused petitioner. It has already been indicated above that learned Magistrate rightly issued process and rightly rejected prayer of the accused petitioner for discharging him. The alleged violation of provisions of Income Tax Act, Indian Contract Act and Money Lenders Act are not at all a bar for continuation of the present criminal proceeding u/s 138 of the NI Act in view of the materials disclosed in the petition of complaint read with demand notice. Here a cheque was dishonoured when presented by complainant for encashment and it was accompanied subsequently by demand notice to the accused petitioner who issued the cheque asking him to make payment of dishonoured cheque amount. In spite of receipt of demand notice the amount of the bounced cheque was not paid and naturally all the initial ingredients of initiation of a proceeding u/s 138 of the NT Act was complete. this Court in an earlier revisional application by order dated 8th July, 2004 directed the learned Magistrate to dispose of the criminal trial within 3 months from the date of communication of the order.
It is evident that in spite of such direction the trial could not be completed and the accused petitioner by different methods is delaying the trial. First, after such order he filed an application for discharge and when it was rejected he moved this Court in this revisional application. Considering the entire matter and the facts and circumstances of the case and the position of law as it stands particularly in view of provisions of NI Act, I find that revisional application has no merit at all and it requires dismissal and it is accordingly dismissed.
Thus, the application being C.R.A.N. No. 598/05 succeeds and is allowed. All the interim orders passed earlier stand vacated.
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2005 (12) TMI 606 - KERALA HIGH COURT
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... ... ..... 313 Cr.P.C. given by the accused. The plea of discharge has not been proved at all. The sentence imposed can accordingly be modified. The challenge in this revision petition can succeed only to the above extent. In the result (a) This revision petition is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I. Act are upheld. (c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court and to pay an amount of Rs. 1,20,000/- as compensation and in default to undergo S.I. for a period of three months. If realised, the entire amount shall be released to the complainant under Section 357(3) Cr.P.C. (d) If the petitioner does not appear before the learned Magistrate on or before 15-1-2006, the learned Magistrate shall take necessary steps for execution of the modified sentence hereby imposed.
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2005 (12) TMI 605 - CESTAT NEW DELHI
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... ... ..... here has been delay in filing the returns as the first return was filed on 31st August, 1998 and the subsequent returns for the months of March, June and July were filed on 25th November, 1998. I find that the appellants have paid the service tax with interest. I find that at the beginning of the imposition of service tax, the assesses were not fully aware of the provisions of the service tax as well as the manner of filing of the returns and due to that there has been delay of filing the returns. The departmental officers were no doubt trying to educate the assessees but the petty assessees were not coming forward due to their ignorance and hesitation and these factors had led the delay in filing the returns. Therefore, considering the facts and circumstances of the case, the penalty for late filing of the service tax is reduced to Rs. 2,000 (Rupees Two Thousand only). The appeal is disposed of accordingly. Order dictated & pronounced in open Court on 5th December, 2005.
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2005 (12) TMI 604 - CALCUTTA HIGH COURT
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... ... ..... t in the absence of any fraudulent intention and the Trial Court also did not grant such injunction by exercising inherent power. The Trial Court it appears granted injunction by allowing the application under Order 39 Rules 1 and 2 of the Code. 29. On considering the entire materials on records we find that the learned Trial Judge erred in law in granting the injunction which did not come within the purview of Order 39 of the Code and at the same time grant of such temporary injunction cannot be supported even under Section 151 of the Code. 30. We, therefore, set aside the order of temporary injunction passed by the learned Trial Judge and allow the appeal by dismissing the application for temporary injunction filed by the plaintiff. In view of disposal of the appeal itself the pending applications have become infructuous and those are disposed of accordingly. 31. In the facts and circumstances, there will be, however, no order as to costs. A.K. Bhattacharya, J. 32. I agree.
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2005 (12) TMI 603 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... hartered Accountants of India Ltd., While certainly the issue in the booklet are factors that can be taken into account for valuation of shares for arriving at fair price, we do not think that it advances the case of the appellants since the booklet more or less repeats all that is stated in report of Patni & Co., 41. We are dealing with the facts before us in this statutory appeal and it is not necessary to refer to other pronouncements cited by the learned counsel for the appellants and respondents which deals with maintainability of the appeal. We have relied on the pronouncement of the Supreme Court in Hindustan Lever Ltd., case reported in 1995 (1) Supp SCC 499 with respect to the valuation since Patni & Co.,'s report makes a reference to it rightly so. We have carefully perused the report of Patni & Co., and there is no reason for us to question the credibility of the report. The appeals are devoid of merit. Appeals stand dismissed. No order as to costs.
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2005 (12) TMI 602 - KARNATAKA HIGH COURT
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... ... ..... or the second time, at the time of passing of impugned order and the same is not barred. Hence the same cannot be said to be illegal. Moreover, the order of issuing process cannot be set aside merely on such hypertechnical ground. Added to it, no prejudice is caused to the petitioners by non mentioning in the order sheet while proceeding to record sworn statements of the witnesses, that the cognizance is taken. It is not a mandate of law that the Magistrate should mention that he has taken cognizance of the offence, before recording sworn statement. In view of the same, I do not find any reason to interfere in the order passed by the Court below. Criminal petition is accordingly dismissed. However, petitioners are at liberty to argue for their discharge before the Court below if they so choose. If such arguments are advanced, the trial Court shall consider the same in accordance with law without being influenced by any of the observations made during the course of this order.
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2005 (12) TMI 601 - ANDHRA PRADESH HIGH COURT
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... ... ..... they are liable for punishment under Section 138 of the Act. They may be liable to discharge the debt due by the company, but they cannot be made liable for the offence unless it is established that they are incharge of day-to-day affairs of A-1 Company. The trial Court rightly held that A-3 and A-4 are not liable for prosecution under Section 138 of the Act. Thus, this point is also found against the complainant. POINT NO. 5 22. In view of the findings on points 1 to 4. I am of the considered view that the trial Judge rightly placed reliance on the decision of this Court in Shri Taher N. Khambati's case 1995 Cri LJ 560 (supra) and rightly acquitted the accused in this case. I do not find any perversity in the reasons given by the trial Court for acquittal of the accused. Hence, there is no need for interference by this Court with the order of acquittal passed by the trial Court. Thus, this point is held accordingly. POINT NO. 6 23. IN THE RESULT, the appeal is dismissed.
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2005 (12) TMI 600 - BOMBAY HIGH COURT
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... ... ..... present case, no particulars whatsoever were placed by the petitioner before the Commissioner of the Income Tax. 6. Even as far as the petitioner’s own hospital is concerned, the Commissioner has pointed out as to how the fees are charged for OPD in paragraphs 8 and 9 of the impugned order. He has also referred to the payments received by the Members - Directors out of the gross profit and thereafter he has observed in para-11 of the impugned order that the charges payable by the patients are at par with any other hospital of the same kind in the region. Absence of any scheme providing confessional or free treatment to the socially or financially weaker sections of the population indicates that the receipts of the hospital were not different from those of the other privately run hospitals. This being so, the Commissioner of Income Tax was constrained to take the view that he has taken and we do not find any error in it. 7. In the circumstances, the Petition is rejected.
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2005 (12) TMI 599 - MADRAS HIGH COURT
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... ... ..... 6 letter was received by him has gone back and stated in his re-examination that exhibit B9 is the cover, will show that he is not speaking the truth. Considering these aspects the trial court ought to have rejected exhibit B6, whereas the trial court erred in holding that exhibit B6 was written by the plaintiff. Therefore, there is absolutely no evidence to hold that one Raghavan was an agent to the plaintiff and he participated in the tender and it was not the case as pleaded by the defendants in the written statement. 26. For all these reasons stated above, we hold that the trial court has totally 26 misconstrued the oral and documentary evidence available on record and has not properly considered the scope of the legal presumption available under Section 118 of the Negotiable Instruments Act and we are unable to accept the reasoning of the trial court for dismissing the suit. We hereby set aside the judgment of the trial court and decree the suit as prayed for with costs.
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2005 (12) TMI 598 - SUPREME COURT
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... ... ..... instant case. The question which was raised therein was absolutely different and distinct. Therein the selection process was held to be valid having regard to the fact that 7000 posts of Assistant Teachers under a time-bound scheme were to be filled up wherein the rules were amended. This Court in that situation observed "There are different methods of inviting applications. The method adopted in the exigencies of the situation in the present case cannot be labelled as unfair, particularly when, at the relevant time, the two earlier decisions of this Court were in vogue." 23. In the instant case, what was commended by the High Court and this Court was not the validity or otherwise of the advertisement issued in the press but the mode and manner in which the selection of the candidates was held. 24. For the aforementioned reasons, we are of the opinion that the impugned judgment is unsustainable in law, which is set aside accordingly. The appeal is allowed. No costs.
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2005 (12) TMI 597 - SUPREME COURT
Scope of exercise of power u/s 482 of the CrPC - commission of offences under Sections 120(8), 420, 468 and 471 of Indian Penal Code, 1872 ('IPC') r/w Section 13(2) and 13(1)(a) of the Prevention of Corruption Act, 1988 ('Act') - HELD THAT:- It is to be noted mplete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction u/s 482 of the CrPC, it is not permissible for the Court to act as if it was a trial Court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
In Chand Dhawan (Smt.) v. Jawahar Lal and Ors. [1992 (4) TMI 254 - SUPREME COURT], it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions u/s 482 of the CrPC., which cannot be termed as evidence without being tested and proved.
Learned Single Judges did not keep in view the correct position in law while allowing the petitions filed by the respondents. It baffles us as to how a learned Single Judge while exercising powers u/s 482 CrPC could even direct grant of renewal of licence. It is somewhat akin to a learned Single Judge of another High Court directing creation of criminal courts to deal with cases under a particular statute. It is baffling how learned Single Judge referred to submissions purportedly made by learned Counsel for Bichitrananda who was not even a party. It is not clear how such submissions if any could be made. The conclusions are based on surmises and conjectures without any material to support them. Learned Single Judge arrived at certain conclusions which are utterly fallacious.
It is submitted by learned Counsel for the respondents that interim protections were given by the High Court as regards the respondents being on bail. That protection shall continue, but in case the respondents fail to cooperate in the investigation and do not appear before the investigating officer for the purpose of investigation as and when required, the interim protection shall cease to be operative and it shall be open to the investigating agency to move the concerned court for cancellation of the protection which was granted. It is submitted by learned Counsel for the respondents that in case charge sheet is filed and in the case where charge sheet is already filed, respondents shall seek discharge. If any such motion is made the concerned Court shall deal with the same in accordance with law. We do not express any opinion about the acceptability or otherwise of such motion, if made.
The appeals are allowed to the aforesaid extent.
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2005 (12) TMI 596 - KERALA HIGH COURT
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... ... ..... f the Code of Criminal Procedure deserve to be invoked. Judicial wisdom, sagacity, sobriety and circumspection have to be pressed into service to identify that rare and exceptional case where invocation of the extraordinary inherent jurisdiction is warranted to bring about premature termination of proceedings subject of course to the general principles narrated above. 54. In the light of what is stated above, each of the cases is to be considered by the learned Single Judge exercising the jurisdiction under Section 482 Cr.P.C. We notice that interim orders of stay of trial were passed in the above said cases. Hence the Office will take steps for posting the above cases before appropriate Bench to expedite the disposal. R. Basant, J. 55. I have had the advantage of perusing the exhaustive and thorough judgment prepared by my learned brother Justice P.R. Raman. I concur completely with the legal position summarised by my learned brother in Para 53 and the directions in para 54.
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2005 (12) TMI 595 - SUPREME COURT
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... ... ..... 7 of the Act has been completely given a go-by by the High Court which is not sustainable in law. 4. We, accordingly, set aside the order impugned herein. The respondent is on bail. His bail bonds and sureties shall stand cancelled and he is directed to be taken back to the custody forthwith. 5. The appeal is allowed.
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2005 (12) TMI 594 - ITAT JODHPUR
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... ... ..... s sham. Adverting to the facts of the instant case, I find that the assessee had led necessary evidence before the Assessing Officer, who rejected the same without showing as to how it was not reliable. Considering all the facts in entirety, I am of the considered opinion that the ld. CIT(A) was not justified in sustaining the disallowance. By reversing the impugned order, I direct the deletion of this addition. An announcement to this effect was made during the course of hearing itself. 5. No argument was raised by the ld. A.R. with regard to sustenance of small disallowances out of expenses debited to the P & L account. It is observed that the disallowance represents a very small portion of the expenditure incurred under respective heads, which has been made on account of lack of proper evidence in support of the expenses. In my considered opinion, the ld. CIT(A) was correct in sustaining this disallowance. 6. In the result, the appeal of the assessee is partly allowed.
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2005 (12) TMI 593 - DELHI HIGH COURT
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... ... ..... amendment to sue in the name of the sole proprietorship firm. Even according to the averments made in the petition, though it is stated that Mr.A.K. Khanna is the sole proprietor of the firm, M/s.Svapn Construction, however, no permission has been sought to sue in the name of the sole proprietorship firm. If the sole proprietorship firm is not a legal entity, the petition should have been filed by the sole proprietor in his name on behalf of his sole proprietorship firm and not in the name of sole proprietorship firm. Considering it from any point, the inevitable inference is that a petition in the name of a sole proprietorship firm's name which is not a legal entity is not maintainable. 17. Therefore, in the facts and circumstances, the petition which has been filed by a sole proprietorship firm, which is not a legal entity, is not maintainable and it is, therefore, dismissed. However in the facts and circumstances of the case, parties are, left to bear their own costs.
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2005 (12) TMI 592 - DELHI HIGH COURT
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... ... ..... . Therefore, it is not a case where assets and properties of a judgment debtor were located in different areas over which different courts had territorial jurisdiction. Clearly, the two decisions relied upon by the learned counsel for the petitioner would not be applicable to the facts of the present case. There is no difficulty in my coming to the conclusion that a second execution application filed in this Court when the first application is pending before the District Court falling within the territorial jurisdiction of this Court would not lie. 9. Thus, although I have found the objections raised by the respondent in respect of the Section 42argument to be untenable, this petition has to be dismissed because of my view that this Court does not have pecuniary jurisdiction to entertain this petition and, secondly, that the present petition being a second Execution Application would not be maintainable. The Execution Petition is, accordingly, dismissed. No order as to costs.
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