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2005 (10) TMI 599
Power of Magistrate to cancel the bail granted - Challenged the bail cancellation order passed - Offences under Section 120B and 307 IPC - HELD THAT:- The plea of the appellant's learned Counsel is that if the Sessions Court had granted bail, the order of cancellation of such bail should also have been passed by the Sessions Court or by any superior Court and not by the learned Magistrate who is not empowered to cancel it. As a general proposition, the plea raised by the appellant is correct. It is equally true that the accused who is on bail, should be heard before an order of cancellation of bail is passed by the Court.
The order of the Sessions Court shows that the learned Magistrate has been empowered to consider the question of violation of any of the conditions imposed by the Sessions Court and was given powers to pass appropriate orders. The plea raised by the appellant's learned Counsel is that when the learned Magistrate had no such power, the Sessions Court was not empowered to invest that power in the Magistrate. We do not find any force in this contention. The superior court can always give directions of this nature and authorise the subordinate court to pass appropriate orders and the trial Magistrate would be the competent authority to decide whether any condition had been violated by the person who had been released on bail. When there is a specific direction to pass appropriate orders as if the conditions for granting bail had been imposed by the learned Magistrate himself, the impugned Order is legal and valid.
The contention of learned Counsel for the appellant that the appellant was in prison in connection with another case and that is why he could not appear before the Investigating Officer, does not appear to be true as such a plea was not raised before the learned Magistrate. The learned Counsel for the appellant only contended before the learned Magistrate that he apprehended assault at the hands of the police and, therefore, he refrained from making himself available before the investigating officer. The learned Magistrate rightly rejected this plea. The Order passed by the learned Magistrate was correct and the High Court has rightly rejected the Revision filed by the appellant.
We see no reason to interfere with the impugned judgment and the appeal is accordingly dismissed.
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2005 (10) TMI 598
Issues:
Service tax liability on commission paid to dealers for services resembling clearing and forwarding agents.
Analysis:
The case involved a dispute related to service tax concerning a manufacturer of excisable goods who paid commission to dealers for procuring orders and processing them. The issue revolved around whether the commission paid to the dealers was taxable as services provided by clearing and forwarding agents. The Tribunal referred to a previous decision and held that the services rendered were akin to those of clearing and forwarding agents, making the appellant liable to pay service tax. The liability to pay tax shifted to the service receiver as per Service Tax Rules.
The appellant argued that the services provided by the dealers were more in the nature of an incentive payment or commission to commission agents. However, the Tribunal found that the services provided by the dealers were similar to those of clearing and forwarding agents, irrespective of the nomenclature used. The Tribunal emphasized that the character of the service rendered was crucial, not the terminology. The commission paid was deemed a taxable service, not a commission or discount as claimed by the appellant.
Regarding penalties and interest imposed for non-payment of tax, the Tribunal noted that the tax amount was deposited under protest before the amendments in 2000 and 2003. The amendments aimed to rectify inconsistencies and make service receivers liable for paying service tax. Citing a Supreme Court ruling, the Tribunal set aside penalties and interest, stating that such liabilities would arise only if dues were not paid within a specified period from the court order. As the tax was paid before this period, penalties and interest were overturned.
In conclusion, the appeal was partly allowed, affirming the service tax liability on the commission paid to the dealers. However, penalties and interest imposed by the lower authority were set aside based on the Supreme Court ruling and the timing of tax payment.
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2005 (10) TMI 597
Issues:
- Liability of service tax on the recipient of services provided by a foreign person.
- Interpretation of the technical assistance agreement and relevant provisions of the Service Tax Rules.
- Applicability of withholding tax provisions in the agreement on the liability of service tax.
Analysis:
1. Liability of service tax on the recipient of services provided by a foreign person:
The appeal was filed by the Revenue against the order of the Commissioner (Appeals) regarding the payment of service tax by M/s. Mother son Sumi Systems Ltd. (MSSL) for services received from M/s. Sumi Tomo Wiring Systems Ltd., Japan (STWSL). The issue revolved around whether the recipient of services could be held liable for service tax when the services were provided by a foreign person without appointing an authorized representative for payment of service tax. The appellant argued that prior to August 11, 2002, service tax was payable by the foreign service provider's authorized representative, and only after the amendment in August 2002, the recipient became liable for service tax if the services were provided by a foreign person. The tribunal referred to relevant precedents and ruled in favor of the appellant, emphasizing that the liability for service tax prior to the amendment did not arise when the recipient was not appointed as the authorized agent of the service provider.
2. Interpretation of the technical assistance agreement and Service Tax Rules:
The Revenue contended that Article 26 of the agreement between the service provider and the recipient mandated the deduction of withholding tax in India, implying a broader liability. However, the tribunal analyzed the agreement and found that Article 9.1 did not address the payment of service tax by the respondents. The Commissioner (Appeals) provided sound reasoning, highlighting the inapplicability of certain provisions of the Service Tax Rules to the case in question. The tribunal agreed with the Commissioner's analysis, emphasizing that the agreement's provisions did not impose a direct burden on the appellants to pay service tax, as withholding tax referred to income taxation and did not authorize the appellants to discharge the service provider's service tax liability.
3. Applicability of withholding tax provisions in the agreement on the liability of service tax:
The tribunal further examined Article 9.1 and Article 26 of the technical assistance agreement to determine whether they authorized the appellants to pay service tax on behalf of the service provider. It was concluded that the provisions in the agreement did not place a burden on the appellants to pay service tax, as the primary responsibility for service tax rested with the service provider. The tribunal, based on the Commissioner (Appeals)'s reasoning, rejected the appeal of the Revenue, finding no merit in their arguments.
In conclusion, the tribunal upheld the decision of the Commissioner (Appeals) and dismissed the Revenue's appeal, emphasizing the specific provisions of the technical assistance agreement and the Service Tax Rules in determining the liability for service tax in the case of services provided by a foreign person.
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2005 (10) TMI 596
Issues Involved:
1. Execution of the promissory note by the defendants.
2. Entitlement of the defendants to set off.
3. Amount due to the plaintiff and liability of the defendants.
4. Mortgage of the suit schedule property.
5. Plaintiff's entitlement to recover the amount by sale of the suit schedule property.
6. Suit being barred by limitation.
7. Status of the first defendant as a sick unit.
8. Execution of acknowledgements of debt by the defendants.
Detailed Analysis:
1. Execution of the Promissory Note:
The plaintiff-bank claimed that the defendants executed a demand promissory note for Rs. 75,000 with interest at 17.5% per annum compounded quarterly. The defendants denied executing such a note, contending signatures were taken on blank sheets. The Trial Court found that the bank did not sufficiently prove the execution of the promissory note, as required under Section 101 of the Indian Evidence Act. The promissory note (Ex.P1) lacked clear witness identification and the bank failed to discharge its initial burden of proof.
2. Entitlement to Set Off:
The defendants argued for a set-off due to losses incurred from the bank's failure to process a letter of credit, resulting in a loss of Rs. 2 lakhs. The Trial Court dismissed this claim, and the appellate court concurred, finding no substantial evidence supporting the defendants' entitlement to set off.
3. Amount Due and Liability:
The bank claimed Rs. 3,68,951.30 was due, supported by ledger extracts (Ex.P7). The defendants contested this, denying the execution of acknowledgements of debt. The Trial Court found the bank's evidence insufficient, noting discrepancies in the documents and concluding the amount due was not established.
4. Mortgage of Suit Schedule Property:
The bank asserted an equitable mortgage through the deposit of title deeds. The defendants denied this, stating the title deeds were never intended as collateral for the loan in question. The Trial Court found the bank's documentation (Ex.P3) inconsistent, noting different inks and handwritings, and concluded there was no valid mortgage.
5. Recovery by Sale of Property:
Given the findings on the mortgage, the Trial Court held the bank was not entitled to recover the amount by selling the suit schedule property. The appellate court upheld this, agreeing there was no valid equitable mortgage.
6. Suit Barred by Limitation:
The defendants argued the suit was time-barred. The Trial Court agreed, noting the acknowledgements of debt (Ex.P4, P5, P6) did not meet the requirements of Section 18 of the Limitation Act, thus not extending the limitation period. The appellate court concurred, emphasizing the discrepancies in the documents and the lack of proper acknowledgements.
7. Status as a Sick Unit:
The defendants claimed the first defendant was a sick unit, seeking concessions. The Trial Court did not find sufficient evidence to support this claim, and the appellate court upheld this finding.
8. Execution of Acknowledgements of Debt:
The bank relied on acknowledgements of debt to extend the limitation period. The Trial Court found these documents were not properly executed, noting discrepancies in handwriting and ink, and the absence of necessary details. The appellate court agreed, stating the documents did not conform to Section 18 of the Limitation Act.
Conclusion:
The appellate court upheld the Trial Court's judgment, dismissing the bank's suit on grounds of insufficient evidence, lack of proper execution of documents, and the suit being time-barred. The court criticized the bank's handling of documentation and the decision to pursue the appeal, highlighting the misuse of public funds and the need for better management practices. The appeal was dismissed, and the court directed the judgment to be sent to the bank's Chairman-cum-Managing Director for corrective measures.
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2005 (10) TMI 595
Issues:
Granting of bail to the respondent by the High Court of Madras based on certain conditions challenged before the Supreme Court of India.
Detailed Analysis:
The respondent, one of the accused in a criminal case charged under various sections of the IPC and the Arms Act, was granted bail by the High Court of Madras. The prosecution alleged that the respondent conspired with others to kill the deceased individuals due to disputes arising from educational institutions owned by them. The respondent filed multiple bail applications before different courts, which were either dismissed or withdrawn. The High Court finally granted bail to the respondent, leading to the current challenge before the Supreme Court.
The State's counsel argued that the High Court should not have granted bail to the respondent without any change in circumstances, especially after a previous bail denial by another judge. The State highlighted that there was no confession retracted during the video conference as claimed by the respondent's counsel. The State also raised concerns about witness tampering and the respondent's alleged influence on the case. The State emphasized that the respondent's health condition and previous applications did not warrant a change in the bail decision.
The Supreme Court, after considering the arguments, found that the High Court's decision to grant bail to the respondent was not justified. The Court noted that the previous bail denial by a different judge and the lack of significant changes in circumstances should have been considered. The Court emphasized the importance of not setting bad precedents by repeatedly filing bail applications without valid grounds. Despite strong allegations against the respondent, the Court did not delve into the evidence but directed the respondent to be taken into custody immediately. The Court also instructed the Sessions Judge to expedite the trial process since the final report had already been filed.
In conclusion, the Supreme Court allowed the appeal, overturned the High Court's bail order, and ordered the respondent's immediate custody. The Court stressed the need for expeditious trial proceedings given the seriousness of the case and the existing evidence against the respondent.
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2005 (10) TMI 594
Interpretation of Section 300 of the CrPC - Demand for illegal gratification - cognizance of an offence u/s 7 of the Prevention of Corruption Act, 1988 ("the Act") - Validity of sanction obtained - HC allowed the first application, when an accused faces a full-fledged trial, having regard to the provisions of the Code, the Trial Court must either record a judgment of conviction or acquittal and the accused cannot be discharged in terms of Section 227 of the Code after a full-fledged trial - In the second matter, the High Court was of the opinion that no fresh trial is permissible in law - HELD THAT:- It is not possible to agree with the decision of the High Court that the Trial Court was bound to record either a judgment of conviction or acquittal, even after holding that the sanction was not valid. We have noticed hereinbefore that even if a judgment of conviction or acquittal was recorded, the same would not make any distinction for the purpose of invoking the provisions of Section 300 of the Code as even then, it would be held to have been rendered illegally and without jurisdiction.
However, we are of the opinion that the interest of justice shall be sub-served if while allowing these appeals and setting aside the judgments of the High Court, the trial court is requested to dispose of the matters at an early date preferably within six months from the date of communication of this order, subject, of course, to rendition of all cooperation of the Respondents herein. In the event, the trial is not completed within the aforementioned period, it would be open to the Respondents to approach the High Court again. These appeals are disposed of with the aforementioned directions. No costs.
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2005 (10) TMI 593
Issues Involved:
1. Interpretation and applicability of DCR 58(1) and its sub-clauses.
2. Validity of the clarification dated 28th March 2003.
3. Compliance with the EIA Notification dated 27th January 1994 (as amended on 7th July 2004).
4. Legality of sales of mill lands by NTC in light of Supreme Court orders and BIFR schemes.
Detailed Analysis:
1. Interpretation and Applicability of DCR 58(1) and Its Sub-Clauses:
DCR 58(1):
The condition precedent to the applicability of DCR 58(1)(a) and 58(1)(b) is the previous approval of the Municipal Commissioner to a layout and as part of a package of measures recommended by BIFR for the revival/rehabilitation of a potentially viable sick and/or closed mill. It is not open to any mill owner to seek the approval of the Commissioner to a layout under DCR 58(1) on his own but the same can be done only as part of a scheme of BIFR.
DCR 58(1)(a):
This provision applies only to the existing structures, and not to any newly built-up area (whether after demolition or otherwise). The change of user under DCR 58(1)(a) is permissible only as part of a package of measures recommended by BIFR. The Commissioner may allow the existing structure to be utilized for the users specified in clauses (i) to (iii) thereof.
DCR 58(1)(b):
This provision specifies the user permissible, as part of a package of measures recommended by BIFR, in respect of "open lands and balance FSI" on condition that the same is shared in the manner envisaged thereunder. The term "open lands" is to be given its natural, unrestricted meaning i.e., lands which are presently vacant and/or lands which become vacant at any time upon demolition of the structures thereon.
DCR 58(2):
Textile mills requiring modernization may develop or redevelop lands for the purpose of modernization subject to two conditions: (1) approval by the competent authorities and (2) in accordance with a scheme approved by the Government. When these are satisfied, the Commissioner is empowered to approve a layout which may permit a change of user both in respect of the user of built-up area and/or development of open lands and balance FSI.
DCR 58(3):
A cotton textile mill may be shifted outside Greater Bombay but within the State subject to two conditions: (1) approval of the competent authorities and (2) in accordance with a scheme approved by the Government. In such a scheme, the development or re-development of the land after shifting may be in accordance with sub-clause (a) and (b) of sub-regulation (1).
DCR 58(4):
This clarifies that the recommendation of BIFR is not mandatory in the case of sub-regulations (2) and (3).
DCR 58(5):
The Commissioner is expressly empowered to allow additional development to the extent of balance FSI on open lands or otherwise for the same cotton textile or related user.
DCR 58(6):
This provision contemplates demolition of existing structures and reconstruction to the extent of the built-up area of such structures, as also aggregation of the built-up areas of different mills for such demolition and reconstruction. It does not permit or contemplate any change of user and hence requires a separate layout approval by the Commissioner.
2. Validity of the Clarification Dated 28th March 2003:
The clarification dated 28th March 2003, which purported to exclude lands becoming open upon demolition of existing structures from the requirement of sharing, amounts to an amendment of DCR 58 and is ultra vires DCR 62(3). It was issued without following the necessary procedures under Section 37 of the MRTP Act and is therefore invalid. The clarification is also prejudicial to the environment and ultra vires Articles 21 and 48A of the Constitution.
3. Compliance with the EIA Notification:
None of the Respondents who have started construction of residential/commercial premises have obtained the mandatory clearance from the Ministry of Environment and Forests (MoEF) prior to starting any development, as required under the EIA Notification dated 27th January 1994 (as amended on 7th July 2004). This non-compliance is contrary to public interest and amounts to an illegality and a violation of the Petitioners' rights under Article 21 of the Constitution.
4. Legality of Sales of Mill Lands by NTC:
The sales of lands by NTC from five mills are contrary to the sanctioned BIFR schemes and the Supreme Court orders dated 11th May 2005 and 27th September 2002. The sanctioned scheme of BIFR clearly provides that the surrender of land to MCGM and MHADA in respect of each mill shall be out of the land of such mill itself and not out of the land of some other mill. The integrated development scheme approved by MCGM is contrary to the sanctioned scheme, which does not contemplate any such integration.
Conclusion:
The interpretation of DCR 58(1)(b) as including lands after demolition of structures is upheld. The clarification dated 28th March 2003 is invalid. Compliance with the EIA Notification is mandatory, and the sales of mill lands by NTC are contrary to the Supreme Court orders and BIFR schemes.
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2005 (10) TMI 592
Issues Involved:
1. Verification of community certificate.
2. Eligibility to contest election reserved for Scheduled Caste.
3. Burden of proof regarding caste status.
4. Applicability of Article 243O of the Constitution and Section 153(14) of the Kerala Panchayat Raj Act, 1994.
5. Consequences of fraudulent claims and misrepresentation.
Detailed Analysis:
1. Verification of Community Certificate:
The appellant claimed to belong to the Hindu Pulayan Community, a Scheduled Caste. However, the Scrutiny Committee concluded that she was not a member of the Scheduled Caste and had never followed Hinduism or lived in a Hindu cultural milieu. The Committee's decision was based on detailed inquiries and evidence, including the appellant's birth to Christian parents and her continued practice of Christianity. The High Court upheld this decision, confirming that the appellant could not substantiate her claim of being a Scheduled Caste member.
2. Eligibility to Contest Election Reserved for Scheduled Caste:
The appellant contested an election for the office of the President of the Gram Panchayat, reserved for Scheduled Caste members. Respondent No. 3 filed a complaint alleging that the appellant did not belong to the Scheduled Caste. The Scrutiny Committee and the High Court found that the appellant falsely claimed to be a member of the Hindu Pulayan Community to gain electoral benefits. Consequently, her caste certificate was canceled.
3. Burden of Proof Regarding Caste Status:
The appellant argued that the burden of proof should not have been on her to prove her Scheduled Caste status. However, the Court clarified that under Section 10 of the Kerala (Scheduled Castes and Scheduled Tribes) Regulations of Issue of Community Certificate Act, 1996, the burden of proof lies on the person claiming the benefits of Scheduled Caste status. The appellant failed to provide sufficient evidence to support her claim, leading to the cancellation of her caste certificate.
4. Applicability of Article 243O of the Constitution and Section 153(14) of the Kerala Panchayat Raj Act, 1994:
The appellant contended that the only remedy for challenging her eligibility was through an election petition under Article 243O of the Constitution and Section 153(14) of the Kerala Panchayat Raj Act. However, this argument was raised late in the proceedings and was not considered earlier. The Court noted that the primary issue was whether the appellant belonged to the Scheduled Caste, and the Scrutiny Committee's decision on this matter was lawful and valid.
5. Consequences of Fraudulent Claims and Misrepresentation:
The Court emphasized that fraudulent claims to obtain benefits reserved for Scheduled Castes undermine constitutional provisions and are not tolerated. The appellant's fraudulent misrepresentation of her caste status was deemed a serious offense. The Court cited various precedents highlighting that fraud vitiates all legal proceedings and transactions. Consequently, the appellant's caste certificate was rightfully canceled, and she faced the legal consequences of her fraudulent actions.
Conclusion:
The Supreme Court dismissed the appeal, upholding the decisions of the Scrutiny Committee and the High Court. The appellant's claim to Scheduled Caste status was found to be fraudulent, and her caste certificate was rightfully canceled. The Court reaffirmed that the burden of proof lies on the claimant and that fraudulent claims to gain undue benefits are not permissible. The appellant's late arguments regarding the applicability of constitutional and statutory provisions were not entertained, as they were not raised earlier in the proceedings.
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2005 (10) TMI 591
Issues Involved:
1. Ownership of the property.
2. Relationship of landlord and tenant between the plaintiff and the defendant.
3. Application of the doctrine of res judicata.
4. Grounds for eviction under the M.P. Accommodation Control Act, 1961.
Issue-wise Detailed Analysis:
1. Ownership of the Property:
The appellant, Ramadhar, purchased the property from Hiralal Babulal through a registered sale deed dated February 23, 1981. The deed stated that Hiralal was the absolute owner and had full rights to sell the house. The appellant contended that the property was self-acquired by Hiralal, not ancestral, and thus Hiralal had the right to sell it. The trial court confirmed Hiralal's ownership and the legality of the sale to Ramadhar, rejecting the claims of Ganpat and Bhagwandas that the property was ancestral. This finding was upheld in the subsequent suit, establishing Ramadhar's ownership.
2. Relationship of Landlord and Tenant:
The trial court found that Bhagwandas was a tenant of Hiralal, paying rent of Rs. 10 per month, and upon the sale of the property, Bhagwandas became the tenant of Ramadhar. Bhagwandas denied this relationship, claiming he was neither a tenant of Hiralal nor Ramadhar. The appellate court and the High Court found no landlord-tenant relationship due to Bhagwandas' refusal to pay rent to Ramadhar. However, the Supreme Court held that the earlier finding of tenancy in the previous suit operated as res judicata, preventing Bhagwandas from denying the landlord-tenant relationship in the current proceedings.
3. Application of the Doctrine of Res Judicata:
The Supreme Court emphasized that the previous judgment conclusively established the ownership of Ramadhar and the tenancy of Bhagwandas. The court cited several precedents to underline that the findings on ownership and tenancy in the earlier suit operated as res judicata, barring Bhagwandas from re-litigating these issues. The court noted that any matter that 'might and ought' to have been raised in the earlier suit but was not, would also be barred under constructive res judicata.
4. Grounds for Eviction under the M.P. Accommodation Control Act, 1961:
The appellant sought eviction on multiple grounds, including bona fide need, non-payment of rent, denial of title, damage to the property, and need for reconstruction. The trial court found the plaintiff's need genuine and bona fide, and that Bhagwandas had denied the plaintiff's title, making him liable for eviction. The Supreme Court upheld these findings, noting that the trial court's decree for possession was justified and should be restored.
Conclusion:
The Supreme Court allowed the appeal, setting aside the judgments of the lower appellate court and the High Court, and restored the trial court's decree for possession in favor of the appellant. The court granted Bhagwandas four months to vacate the premises, subject to filing an undertaking. The findings on ownership and tenancy from the earlier suit operated as res judicata, preventing Bhagwandas from contesting these issues again. The appellant's grounds for eviction were upheld, and the trial court's decision was deemed correct.
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2005 (10) TMI 590
Misappropriation of the gold utilized for making Ornament "Golaka" for Mekkavu Bhagavathy of Chottanikkara Temple - Offence punishable u/s 13(1)(c) and (d) r/w Section 13(2)of the Prevention of Corruption Act, 1988 and and 403 IPC and 477-A I.P.C. - HELD THAT:- From the findings arrived at by the High Court that it was A-3 who was entrusted with the gold by the Devaswom Board, and who was looking after the affairs of making the ornament Golaka, simply because accused-appellant had accompanied him to Coimbatore, it cannot be inferred that there was an agreement entered into between them to misappropriate the gold. To constitute a conspiracy, agreement between two or more persons for doing an illegal act, or an act by illegal means, is a sine qua non. Although the agreement among the conspirators can be inferred by necessary implication, the inference can only be drawn on the parameters in the manner of proved facts, in the nature of circumstantial evidence. Whatever be the incriminating circumstance, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn.
Even if we hold that at some point of time, the accused-appellant had some knowledge or suspicion about A-3 indulging in fraudulent misappropriation of gold, entrusted to A-3, in the absence of some positive evidence indicating agreement to that effect, conspiracy could not be inferred. On the findings itself arrived at by the High Court, we cannot hold that the accused-appellant was the conspirator to misappropriate the gold, with A-3.
On scrutiny of the entire facts led by the prosecution, the charge of conspiracy cannot stand as there is no link to show that the conspirators agreed to misappropriate the gold while the gold ornament was being prepared.
The accused-appellant was convicted under Sections 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. To constitute an offence under clause (c) of Section 13(1) of the Act, it is necessary for the prosecution to prove that the accused has dishonestly or fraudulently misappropriated any property entrusted to him or under his control as a public servant or allows any other person to do so or converts that property for his own use. The entrustment of the property or the control of the property is a necessary ingredient of Section 13(1)(c). On the findings arrived at by the High Court, it is obvious that the property was neither entrusted nor was under the control of the accused-appellant and thus the accused-appellant could not have been convicted under the Section.
To attract the provisions of Section 13(1)(d) of the Prevention of Corruption Act, public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant. Therefore, for convicting a person under the provisions of Section 13(1)(d) of the Prevention of Corruption Act 1988, there must be evidence on record that the accused has obtained for himself or for any other person, any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant obtained for himself, or for any person, or obtain for any person, any valuable thing, or pecuniary advantage without any public interest.
What we find in the present case is that there is no evidence on record to prove these facts that the accused-appellant had obtained for himself or for any other person any valuable thing or pecuniary advantage. We may clarify that the charge of conspiracy being not proved u/s 120B I.P.C., the accused appellant could not be held responsible for the act done by A-3. The prosecution has failed to prove that he has obtained for himself or for any other person any valuable thing or pecuniary advantage. Similarly, we do not find any evidence on record to convict accused-appellant under Sections 403, 477-A I.P.C.
Thus, the appeal is allowed. The judgment of the High Court is set aside.
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2005 (10) TMI 589
Issues Involved:
1. Role of the petitioner in the production of documents for car clearance.
2. Consideration of materials under Section 173 of the Criminal Procedure Code (CrPC) at the stage of framing charges.
3. Opportunity of being heard under Section 239 CrPC.
4. Applicability and impact of the Kar Vivad Samadhan Scheme (KVSS) on the prosecution.
5. Statutory exclusion under Section 95 of the Finance Act, 1998.
6. Immunity from prosecution under Section 91 of the Finance Act, 1998.
7. Relevance of the case law in determining the applicability of KVSS.
Issue-wise Detailed Analysis:
1. Role of the Petitioner in the Production of Documents for Car Clearance:
The petitioner argued that he had no role in the production of documents for the clearance of the car. However, the court found that the petitioner was involved in the conspiracy to get customs clearance for the imported Lexus car by producing forged documents, including an invoice showing an undervalue of the car and a letter dated 08.09.1994 that was used to obtain a Foreign Inward Remittance Certificate (FIRC).
2. Consideration of Materials under Section 173 CrPC at the Stage of Framing Charges:
The petitioner contended that the materials found in documents under Section 173 CrPC alone should not be considered while framing charges. The court referred to the Supreme Court decision in State of Orissa v. Debendra Nath Padhi, which held that at the stage of framing charges, only the material produced by the prosecution should be considered, and not the material produced by the accused.
3. Opportunity of Being Heard under Section 239 CrPC:
The petitioner argued that under Section 239 CrPC, the accused should be given an opportunity of being heard. The court agreed that the Magistrate must consider the documents filed under Section 173 CrPC along with the representation made by the prosecution and the accused after giving them an opportunity to be heard.
4. Applicability and Impact of the Kar Vivad Samadhan Scheme (KVSS) on the Prosecution:
The petitioner claimed that the filing of the final report was in gross violation of the KVSS, which provided for the settlement of customs duty and immunity from prosecution. The court examined the provisions of the Finance Act, 1998, and the KVSS, noting that the scheme provides for the settlement of tax arrears and immunity from prosecution for offences under direct and indirect tax enactments.
5. Statutory Exclusion under Section 95 of the Finance Act, 1998:
The court addressed the statutory exclusion under Section 95 of the Finance Act, 1998, which excludes the application of the scheme to persons against whom prosecution for certain offences had been instituted before the filing of the declaration. The court found that the prosecution was instituted after the declaration was made, thus Section 95 did not apply to the petitioner.
6. Immunity from Prosecution under Section 91 of the Finance Act, 1998:
The court analyzed Section 91 of the Finance Act, 1998, which grants immunity from prosecution for offences under direct and indirect tax enactments. The court noted that the immunity does not extend to offences under the Indian Penal Code (IPC), and the allegations against the petitioner included offences under IPC sections 420, 467, 471, and 120B, which are not covered by the immunity provided under Section 91.
7. Relevance of Case Law in Determining the Applicability of KVSS:
The petitioner relied on the case of Heeralal Harilal Bhagwati v. CBI, where the Supreme Court held that the immunity under KVSS extended to offences that may prima facie be made out on identical allegations of evasion of customs duty. However, the court distinguished the present case from Heeralal's case, noting that the allegations against the petitioner involved false representations and misdeclarations related to the clearance of the car, which were not directly related to the evasion of customs duty.
Conclusion:
The court concluded that the petitioner was not entitled to discharge or quashing of the proceedings based on the KVSS, as the immunity provided under the scheme did not extend to the offences alleged against the petitioner under the IPC. The criminal revision petition and the criminal original petition were dismissed.
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2005 (10) TMI 588
The Supreme Court granted leave and directed that the appellants not be dispossessed from the premises pending appointment of an arbitrator. The appeal was disposed of accordingly with no order as to costs. (Citation: 2005 (10) TMI 588 - Supreme Court)
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2005 (10) TMI 587
Issues Involved:
1. Entitlement to protection under Section 197 of the Code of Criminal Procedure.
2. Applicability of Haryana Civil Services (Punishment or Appeal) Rules, 1987.
3. Applicability of Haryana Cooperative Societies Act, 1984.
4. Definition of 'public servant' under Section 21 of IPC.
5. Reasonable connection between the act and the discharge of official duty.
Issue-wise Detailed Analysis:
1. Entitlement to Protection under Section 197 of the Code of Criminal Procedure:
The primary question was whether a Class I Officer of the State Government deputed as Managing Director of a Cooperative Society is entitled to protection under Section 197 of the Code of Criminal Procedure. The court held that the Appellant was not entitled to such protection. Section 197 Cr.PC protects public servants from frivolous prosecutions, but the Appellant did not qualify as a 'public servant' under Section 21 of IPC since his salary was not paid by the government, and he was not in the service of the State at the relevant time.
2. Applicability of Haryana Civil Services (Punishment or Appeal) Rules, 1987:
The court examined whether the Appellant could be considered a 'public servant' under the Haryana Civil Services (Punishment or Appeal) Rules, 1987. Rule 2(D) defines a government employee and includes those whose services are placed at the disposal of a company or organization. However, the court concluded that this definition could not be extended to afford protection under Section 197 Cr.PC, as the rules were meant for specific purposes related to the state's civil services.
3. Applicability of Haryana Cooperative Societies Act, 1984:
The Appellant also relied on Sections 118 and 123 of the Haryana Cooperative Societies Act, 1984. Section 123 deems certain employees engaged in loan recovery or appointed as liquidators or arbitrators as 'public servants'. The court noted that the Appellant, as Managing Director, did not fall under these categories. The legal fiction created by Section 123 was limited to specific roles and could not be extended to the Appellant's position.
4. Definition of 'Public Servant' under Section 21 of IPC:
The court reiterated that the definition of 'public servant' under Section 21 of IPC includes individuals in the service or pay of the government or local authorities. The Appellant did not meet this criterion as his salary was not paid by the government, and he was not in government service at the time. The court referenced previous judgments, including S.S. Dhanoa vs. Municipal Corporation, Delhi, and Mohd. Hadi Raja vs. State of Bihar, to support its conclusion.
5. Reasonable Connection between the Act and the Discharge of Official Duty:
The court emphasized the need for a reasonable connection between the act and the discharge of official duty to invoke protection under Section 197 Cr.PC. The allegations against the Appellant did not demonstrate such a connection. The court also noted that the Appellant's application under Section 203 Cr.PC was not maintainable, referencing Adalat Prasad vs. Rooplal Jindal and Others, which stated that the Criminal Procedure Code does not contemplate a review of an order.
The court dismissed the appeal, allowing the Appellant to raise other contentions in appropriate proceedings.
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2005 (10) TMI 586
Issues Involved:
1. Scope and effect of Section 18 of the Land Acquisition Act as amended in Karnataka.
2. Applicability of Section 5 of the Limitation Act to applications under Section 18(3)(b) of the Land Acquisition Act.
3. The competence of the Deputy Commissioner to make a reference after the expiry of the prescribed period.
Issue-wise Detailed Analysis:
1. Scope and Effect of Section 18 of the Land Acquisition Act as Amended in Karnataka:
The appeals revolve around the interpretation of Section 18 of the Land Acquisition Act, 1894, as amended in Karnataka. Section 18(2) mandates that a claimant must apply for a reference within 90 days from the date of service of notice under Section 12(2). Sub-section (3) directs the Deputy Commissioner to make the reference within 90 days of receiving the application. If the Deputy Commissioner fails to do so, the claimant can apply to the court under Section 18(3)(b) to compel the reference. The court held that the claimant must approach the court within three years of the expiry of 90 days from the date of the application for reference, as per Article 137 of the Limitation Act.
2. Applicability of Section 5 of the Limitation Act to Applications under Section 18(3)(b):
The court clarified that Section 5 of the Limitation Act, which allows for condonation of delay, does not apply to applications under Section 18(3)(b) of the Land Acquisition Act. The court emphasized that the Land Acquisition Act is a special statute, and the specific time limits prescribed therein must be strictly adhered to. The court cited its previous rulings, including Officer on Special Duty (Land Acquisition) and Anr. v. Shah Manilal Chandulal and Ors., to support this view.
3. Competence of the Deputy Commissioner to Make a Reference After the Expiry of the Prescribed Period:
The court held that both the claimant's right to move the court and the Deputy Commissioner's power to make a reference are extinguished after three years and 90 days from the date of the application for reference. The court rejected the view that the Deputy Commissioner could make a reference at any time, even after the claimant's right to seek a reference had expired. The court emphasized that allowing such a practice would defeat the purpose of the statutory scheme, which aims to prevent undue delays and ensure timely resolution of land acquisition matters.
Conclusion:
The Supreme Court upheld the view that the right to seek a reference under Section 18 of the Land Acquisition Act as amended in Karnataka is extinguished if not exercised within the prescribed period. The court also ruled that Section 5 of the Limitation Act does not apply to applications under Section 18(3)(b). Consequently, the Deputy Commissioner cannot make a reference after the expiry of three years and 90 days from the date of the application for reference. The appeals were allowed, and the orders of the High Court were set aside. The applications for reference made by the claimants were dismissed, and the respondents were held not entitled to claim any enhancement under Section 18 of the Act.
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2005 (10) TMI 585
Issues Involved:
1. Whether the sale deed dated 01.12.1965 conveyed the title to the vendee.
2. Whether the High Court was right in interfering with the concurrent findings of fact under Section 100 CPC.
3. Whether the sale deed was executed as a nominal sale or as a real sale.
4. Whether the vendor failed to institute any suit for specific performance.
5. Whether the sale consideration was sufficient to determine the nature of the sale deed.
6. Whether the mutation of the name in revenue records confers any right, title, or interest.
7. Whether the High Court was justified in reversing the judgments of the lower courts.
Detailed Analysis:
1. Whether the sale deed dated 01.12.1965 conveyed the title to the vendee:
The High Court concluded that the sale deed dated 01.12.1965 was not a real sale deed but was executed by way of surety. The admission by the vendee (defendant No. 8) in her written statement and the oral evidence of D.W.1 Mehboob Khan, the husband of defendant No. 8, confirmed that the transaction was intended as a loan. Therefore, the sale deed did not pass any right, title, or interest to the vendee.
2. Whether the High Court was right in interfering with the concurrent findings of fact under Section 100 CPC:
The High Court framed a substantial question of law and found that the lower courts had not properly appreciated the oral and documentary evidence. The High Court re-evaluated the evidence and concluded that the findings of the lower courts were erroneous. The Supreme Court affirmed that the High Court was justified in interfering with the concurrent findings to correct the manifest injustice.
3. Whether the sale deed was executed as a nominal sale or as a real sale:
The evidence indicated that the sale deed was executed as a security for a loan rather than a real sale. The agreement to reconvey the property upon repayment of the loan within three years further supported this conclusion. The Supreme Court agreed with the High Court's finding that the sale deed was nominal and did not convey title.
4. Whether the vendor failed to institute any suit for specific performance:
The appellants argued that the vendor did not file a suit for specific performance. However, the Supreme Court found that the nature of the transaction (a loan with a security deed) did not necessitate a suit for specific performance. The vendor's claim was for a declaration of ownership and recovery of possession, not specific performance of a contract.
5. Whether the sale consideration was sufficient to determine the nature of the sale deed:
The appellants contended that the sale consideration alone should not determine the nature of the sale deed. The Supreme Court noted that the sale consideration was significantly lower than the property's value, indicating that the transaction was not a genuine sale but a loan with security.
6. Whether the mutation of the name in revenue records confers any right, title, or interest:
The Supreme Court held that mere mutation of the name in revenue records does not confer any right, title, or interest in the absence of a real transaction of the property. The mutation of Mst. Hasrat Bi's name did not validate the sale deed as a genuine transfer of title.
7. Whether the High Court was justified in reversing the judgments of the lower courts:
The Supreme Court affirmed that the High Court was justified in reversing the lower courts' judgments. The High Court correctly identified errors in the appreciation of evidence and the application of law by the lower courts. The Supreme Court upheld the High Court's decision to rectify the manifest injustice.
Conclusion:
The Supreme Court dismissed the appeal, affirming the High Court's judgment and decree. The sale deed dated 01.12.1965 was deemed a nominal sale executed as security for a loan, and it did not convey any title to the vendee. The High Court's interference with the lower courts' findings was justified to correct the errors and ensure justice.
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2005 (10) TMI 584
Issues:
1. Admissibility of an affidavit sworn before a notary in a proceeding before the High Court.
Analysis:
The judgment in question dealt with the issue of whether an affidavit sworn before a notary is admissible in a proceeding before the High Court. The preliminary objection raised was regarding the acceptance of an affidavit sworn before a Notary in the court proceedings. The opposing party argued that only affidavits sworn before Oath Commissioners appointed by the Chief Justice of the High Court could be accepted. However, the applicant contended that affidavits sworn before a notary are acceptable in court proceedings. The court examined the relevant rules under Chapter IV of the High Court Rules, which deal with the appointment of Oath Commissioners and the swearing of affidavits before them. The court noted that the rules did not exclusively mandate affidavits to be sworn only before Oath Commissioners of the High Court. The provisions allowed for exceptions, indicating that affidavits sworn before other authorized persons could also be presented before the court.
Furthermore, the court referenced Section 139 of the Code of Civil Procedure, which grants the power to administer oaths on affidavits to various individuals, including notaries appointed under the Notaries Act 1952. The court also cited previous judgments where the admissibility of affidavits sworn before notaries was upheld. It was emphasized that the provisions of the High Court Rules did not expressly exclude affidavits sworn before notaries from being presented in court proceedings. The court concluded that taking a strict and technical view on the matter would cause hardship and defeat the purpose of the Notaries Act 1952 and Section 139 of the CPC. Therefore, the court held that affidavits sworn before notaries can be presented in the proceedings before the High Court and should not be excluded from consideration.
In light of the above analysis, the objection raised against the admissibility of an affidavit sworn before a notary was deemed unsustainable and rejected by the court. The applicant was granted a specific timeframe to file a supplementary affidavit, and the judgment clarified the admissibility of affidavits sworn before notaries in court proceedings.
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2005 (10) TMI 583
The Gujarat High Court heard an appeal regarding alleged bogus purchases in income tax assessment. The main question was whether the Income-tax Appellate Tribunal was justified in retaining the addition of 25% of total purchases amounting to Rs. 73,23,322 out of Rs. 2,92,93,288. The Court admitted the appeal for consideration.
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2005 (10) TMI 582
Issues:
Challenging impugned notice/order dated 14-9-2005 and 21-9-2005 for assessment years 1997-98, 1998-99, and 1997-98 to 2004-05.
Analysis:
The High Court, comprising of A.K. Yog and Dilip Gupta, JJ., heard the case where all respondents were represented, eliminating the need for further notice. Both parties' counsels agreed to expedite the writ petition's decision without waiting for a counter affidavit, as the matter involved a straightforward legal question based on the interpretation of the impugned notice/orders dated 14-9-2005 and 21-9-2005 for the mentioned assessment years. The court noted that the notice dated 21-9-2005 did not pertain to escaped income or rectification but rather indicated an attempt by the Assessing Officer to alter an established opinion, a move deemed impermissible under the law.
The court proceeded to quash the impugned notice/orders dated 14-9-2005 and 21-9-2005, marked as Annexures-4 and 5 respectively in the writ petition. However, it clarified that any ongoing appeals related to the mentioned assessment years under the Income Tax Act should be promptly heard and decided by the relevant authority. Ultimately, the writ petition was allowed, with no specific order regarding costs issued by the court.
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2005 (10) TMI 581
Issues:
1. Challenge of demands for Service tax by appellants.
2. Determination of whether appellants acted as Consignment Agent or Commission Agent.
3. Granting waiver of pre-deposit and stay of recovery.
Analysis:
Issue 1: Challenge of demands for Service tax by appellants
The judgment addresses three separate appeals challenging demands for Service tax. The appellants in Appeal Nos. S/54/2005 and S/55/2005 contest demands of Rs. 32,057 and Rs. 2,39,547 respectively for specific periods. In Appeal No. S/56/2005, a demand of Rs. 21,70,505 for a different period is disputed. The appellants are seeking waiver of pre-deposit and stay of recovery for the tax and penalty amounts.
Issue 2: Determination of whether appellants acted as Consignment Agent or Commission Agent
The Tribunal identifies a common issue across the cases - whether the appellants operated as Consignment Agents or Commission Agents during the relevant periods. The case of M/s. LNGS Pvt. Ltd. is distinguished as they functioned as Commission Agents, covered under "Business Auxiliary Services" introduced post 1-7-2003. A prima facie case is established against the Service tax demand for M/s. LNGS Pvt. Ltd., leading to the grant of waiver and stay of recovery.
Issue 3: Granting waiver of pre-deposit and stay of recovery
For the other two appellants, M/s. Sri Vasavi Jeans and M/s. Sabarey Enterprises, who were physically handling excisable goods and acting as Consignment Agents, the Tribunal finds no prima facie case against the Service tax demands. Therefore, they are directed to pre-deposit the respective tax amounts within six weeks and report compliance by a specified date.
In conclusion, the judgment clarifies the distinction between Commission Agents and Consignment Agents in determining the applicability of Service tax demands. While waiver is granted in one case, pre-deposit is directed in the other two cases based on the nature of services provided by the appellants during the disputed periods.
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2005 (10) TMI 580
Issues Involved:
1. Whether the warranty replacement by the respondent at the cost of TELCO results in a sale, though consideration for the same is received from TELCO by way of credit notes?
2. Whether in order to bring the turnover on the sale of warranty replacement to tax, the consideration ought to have been received from the vehicle owner alone to term the same as sale?
3. Whether the credit note issued by TELCO in respect of warranty replacement is not consideration for the sale of spare parts?
Issue-wise Detailed Analysis:
Issue 1: Warranty Replacement as Sale
The core issue is whether the warranty replacement by the respondent at the cost of TELCO constitutes a sale, even though the consideration is received from TELCO via credit notes. The assessing authority rejected the respondent's claim for exemption on the turnover of spare parts used for warranty replacements, arguing that the replacement parts provided free of cost to customers still constitute a sale. The authority reasoned that the cost of warranty claims is accounted separately and not included in the original cost of the motor car. Therefore, the replacement of defective parts with new parts is considered a sale on behalf of TELCO, making it subject to tax.
Issue 2: Consideration from Vehicle Owner
The second issue questions whether the turnover on the sale of warranty replacements should be taxed only if the consideration is received from the vehicle owner. The assessing authority concluded that the replacement parts are sold from the dealer's stock and that the dealer acts both as a seller and as a service agent for TELCO. Thus, the transaction is considered a sale liable to tax, regardless of whether the consideration comes directly from the vehicle owner or via credit notes from TELCO.
Issue 3: Credit Note as Consideration
The third issue addresses whether the credit note issued by TELCO for warranty replacements constitutes consideration for the sale of spare parts. The assessing authority determined that the credit notes represent the receipt of consideration for the new parts provided, thereby satisfying the conditions for a sale under the Karnataka Sales Tax Act. Consequently, the transaction is taxable.
Judgment:
The Karnataka High Court referenced the Supreme Court's decision in Mohd. Ekam Khan & Sons Vs. Commissioner of Trade Tax, U.P., which held that the supply of parts under warranty and the receipt of payment through credit notes constitute a sale subject to tax. The High Court found the facts of the present case identical to those in the Supreme Court case. The Court emphasized that judicial decisions should not be treated as statutes and must be interpreted in the context of their specific facts.
The High Court concluded that the findings of the Karnataka Appellate Tribunal were contrary to the law declared by the Supreme Court. Therefore, the revision petition filed by the revenue was allowed, setting aside the Tribunal's order and restoring the assessing authority's decision to tax the turnover of spare parts used for warranty replacements. The parties were directed to bear their own costs.
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