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• 2006 (11) TMI 728
  
  ISSUES PRESENTED and CONSIDERED

  The court considered several issues, primarily revolving around the recovery of a loan amount along with interest. The core issues included:

  1. Whether the plaintiff advanced a sum of Rs. 15 lacs as a commercial loan to the defendants.

  2. Whether the defendants executed any promissory note as pleaded by the plaintiff.

  3. Whether the cheques were issued by the defendants under the circumstances as pleaded by them.

  4. The amount of principal and interest the plaintiff is entitled to, and at what rate.

  5. Whether the suit is barred under the Punjab Registration of Money Lenders Act, 1938, and under Sections 69A, 69B, and 269SS of the Income Tax Act.

  6. Whether the suit is without cause of action due to the alleged non-issuance of any cheque or promissory note by the defendants.

  7. Relief sought by the plaintiff.

  ISSUE-WISE DETAILED ANALYSIS

  1. Advancement of Loan:

  The relevant legal framework involves the basic principles of contract law, where the plaintiff must prove the advancement of the loan and the defendants' acknowledgment thereof. The court examined evidence such as written acknowledgments (Ex.PW-1/1 and Ex.PW-1/2) and cheques issued by the defendants.

  The court found that the plaintiff successfully proved the advancement of Rs. 15 lacs as a loan to the defendants. The defendants' argument that the cheques were issued blank was not substantiated with evidence. The presumption was in favor of the plaintiff that documents are presumed to be filled before being signed.

  2. Execution of Promissory Note:

  The court considered whether the documents constituted valid promissory notes. The plaintiff's counsel conceded that the language of Ex.PW-1/1 and Ex.PW-1/2 does not render them as validly constituted promissory notes. However, the documents served as evidence of the loan and the agreed interest rate.

  3. Issuance of Cheques:

  The defendants claimed that the cheques were issued blank to facilitate temporary financial arrangements. However, the court found this theory unconvincing, particularly given the existence of signed acknowledgments of debt. The court noted that if the defendants' theory were correct, there would have been no need for acknowledgments of debt.

  4. Entitlement to Principal and Interest:

  The court held that the plaintiff is entitled to recover the principal amount of Rs. 15 lacs along with interest at the agreed rate of 22% per annum. The plaintiff had restricted the interest claim on the second loan amount, which the court acknowledged.

  5. Bar under Money Lenders Act and Income Tax Act:

  The court examined whether the suit was barred under the Punjab Registration of Money Lenders Act, 1938. It found no evidence that the plaintiff was engaged in the business of money lending. Furthermore, the definition of "loan" under the Act excludes loans advanced by a trader to a trader in the regular course of business.

  Regarding the Income Tax Act, the court noted that no statutory provision renders a loan transaction void for not being recorded in income tax returns or for being in violation of Sections 69A, 69B, or 269SS. Thus, the suit was not barred under these provisions.

  6. Cause of Action:

  The court found that the plaintiff had a valid cause of action, as the loan was advanced and cheques were issued towards its repayment, which were dishonored.

  7. Relief:

  The court decreed the suit in favor of the plaintiff, awarding interest at 22% per annum from the date the loans were advanced. The decree was passed against the defendants jointly and severally.

  SIGNIFICANT HOLDINGS

  The court established several core principles:

  - A document is presumed to be filled before it is signed, placing the onus on the defendants to prove otherwise.

  - The non-disclosure of a loan in income tax returns does not render the transaction void.

  - The plaintiff's entitlement to the principal and agreed interest was upheld, reinforcing the enforceability of private loan agreements.

  The court's final determination was to decree the suit in favor of the plaintiff, awarding the principal amount along with interest at the rate of 22% per annum, and directing that tax deductions be made at the time of execution of the decree.

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• 2006 (11) TMI 727
  
  The Supreme Court of India, in the case cited as 2006 (11) TMI 727 - SC, rendered a decision with Justices S.B. Sinha and Markandey Katju presiding. The order concluded with the dismissal of the appeal.

  ---

• 2006 (11) TMI 726
  
  Issues:
  1. Examination of legality, propriety, and correctness of an adjudication order.
  2. Acceptance of retracted confession as evidence.
  3. Time limitation for filing a revision petition.
  4. Evidence of making payment to a non-resident person.
  5. Admissibility of confessional statements made before Enforcement Directorate.
  6. Allegations of duress in confessional statements.
  7. Evaluation of evidence and legal effect in adjudication.
  8. Proof required for retraction of confessional statements.
  9. Identification of recipient in a payment transaction.
  10. Imposition of penalty for contravention of Foreign Exchange Regulation Act.
  
  Analysis:
  
  1. The Appellate Tribunal was tasked with reviewing the adjudication order passed by the Enforcement Directorate concerning the absolution of charges against the respondent for making a payment to a non-resident person. The Tribunal heard arguments from both parties' representatives, highlighting the importance of examining the legality and correctness of the original order.
  
  2. The revisionist argued for the acceptance of the retracted confession made by the respondent, emphasizing that the confessional statement was voluntarily made and should be considered valid evidence. Reference was made to legal precedents to support the argument that retraction alone does not negate the evidentiary value of the original admission.
  
  3. The respondent's representative contended that the revision petition was filed beyond the prescribed time limit for appeal, raising issues of delay and the absence of a condonation application. The Tribunal deliberated on the significance of the time gap between the dates and the absence of a specific limitation period for filing a revision petition.
  
  4. In evaluating the evidence of making payment to a non-resident person, the Tribunal considered the admission by the respondent regarding the payment made in exchange for a gift cheque. The argument centered on whether the evidence supported the contravention of the Foreign Exchange Regulation Act.
  
  5. The admissibility of confessional statements made before the Enforcement Directorate was debated, with the revisionist emphasizing the voluntary nature of the confession and the lack of evidence of duress. The Tribunal analyzed the legal framework governing the admissibility of such statements.
  
  6. Allegations of duress in confessional statements were addressed, with the Tribunal examining the necessity of providing detailed explanations of the alleged duress. The lack of substantial proof of duress in the retraction of the confession was highlighted in the analysis.
  
  7. The Tribunal scrutinized the evaluation of evidence and the legal effect in the adjudication process, emphasizing the importance of properly assessing available evidence in accordance with the law. The failure of the adjudicating authority to adequately consider the evidence was noted.
  
  8. The requirement for proof in the retraction of confessional statements was discussed, with the Tribunal emphasizing the need for supporting evidence to substantiate claims of duress. Reference was made to legal judgments to support the position taken by the Tribunal.
  
  9. The issue of identifying the recipient in a payment transaction was raised, with the Tribunal considering the common human conduct involved in such transactions. The Tribunal concluded that remanding the matter for fresh adjudication would not serve any purpose based on the evidence discussed.
  
  10. Finally, the Tribunal determined the guilt of the respondent for contravening the Foreign Exchange Regulation Act and imposed a penalty of Rs. 3 lakhs, considering the nature of the violation and the respondent's involvement. The Tribunal set aside the adjudication order and directed the respondent to deposit the penalty amount within a specified period.
  
  This detailed analysis showcases the thorough examination conducted by the Appellate Tribunal in addressing the various legal issues raised in the case and arriving at a just decision based on the evidence and arguments presented by both parties.

  ---

• 2006 (11) TMI 725
  
  Issues Involved:
  1. Nature of Employment and Termination
  2. Allegation of Unfair Labour Practice
  3. Jurisdiction of the Industrial Tribunal
  4. Entitlement to Permanent Status
  5. Application of Section 25-F of the Industrial Disputes Act
  6. Re-employment and Compensation
  
  Detailed Analysis:
  
  1. Nature of Employment and Termination:
  The Respondent engaged the Appellant on a temporary basis for various industrial projects. The Appellant's services were utilized for specific project durations, and upon completion, his employment was terminated. The appointment letters explicitly mentioned the temporary nature of employment and the automatic termination upon the expiry of the specified period. The Appellant worked intermittently from 1978 to 2000, with employment periods ranging from a few days to several years.
  
  2. Allegation of Unfair Labour Practice:
  The Appellant claimed that the Respondent engaged in unfair labour practices by employing him temporarily for an extended period to deprive him of permanent status and privileges. He argued that his continuous employment since 1978 indicated the perennial nature of the job. The Industrial Tribunal, however, found no evidence of artificial breaks in service or unfair labour practices. The Tribunal concluded that the employment was project-specific and temporary, aligning with the nature of the Respondent's work.
  
  3. Jurisdiction of the Industrial Tribunal:
  The Tribunal determined that the primary issue was the termination of the Appellant's services on 10.05.2000, which fell under Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, rather than Item 9. The Tribunal noted that the Appellant should have sought remedy under Section 32 of the Act for alleged illegal termination but approached the Tribunal for permanency after termination, making the complaint unsustainable.
  
  4. Entitlement to Permanent Status:
  The Appellant argued that his long-term temporary employment entitled him to permanent status. However, the Tribunal and subsequent court judgments emphasized that merely working for 240 days in a year does not confer a right to regularization. The nature of the Respondent's project-based work necessitated temporary employment, and there was no statutory obligation to grant permanent status based on the duration of employment alone.
  
  5. Application of Section 25-F of the Industrial Disputes Act:
  The courts examined whether the termination of the Appellant's services complied with Section 25-F of the Industrial Disputes Act, which mandates compensation for retrenchment. The Tribunal found that the Respondent had paid all legal dues and compensation to the Appellant, who accepted them without protest. Therefore, the termination was deemed lawful, and there was no basis for claiming unfair labour practices.
  
  6. Re-employment and Compensation:
  The Supreme Court noted that the Respondent had discontinued direct employment for project work and had started outsourcing. Despite this, the Respondent offered to use its influence with contractors to secure employment for the Appellant. The Court acknowledged this effort and dismissed the appeal, expressing satisfaction that the Respondent provided some relief to the Appellant.
  
  Conclusion:
  The Supreme Court upheld the findings of the Industrial Tribunal and the High Court, concluding that the Respondent's temporary employment practices were bona fide and aligned with the nature of its project-based work. The Appellant's claims of unfair labour practices and entitlement to permanent status were not substantiated. The appeal was dismissed, with the Court noting the Respondent's willingness to assist the Appellant in securing alternative employment through its contractors.

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• 2006 (11) TMI 724
  
  Issues Involved:
  1. Competence of the Arbitrator post-suspension and retirement.
  2. Entitlement to compensation for interruption of work due to anti-social elements.
  3. Entitlement to compensation for price escalation of materials.
  4. Entitlement to compensation for additional transportation costs due to non-availability of a suitable quarry.
  5. Entitlement to compensation for losses due to non-availability of a suitable dumping yard.
  
  Summary:
  
  1. Competence of the Arbitrator:
  The preliminary objection raised by the State of Kerala was that the Arbitrator, who was suspended and later retired, had no jurisdiction to continue with the arbitration. The High Court rejected this objection, stating that the authority of the Arbitrator could only be revoked u/s 5 of the Arbitration Act with the leave of the Court. The Arbitrator's authority was upheld despite his suspension and retirement.
  
  2. Compensation for Interruption of Work:
  Claim (a) involved compensation for interruption of work by anti-social elements. The Arbitrator found that the State failed to remove such obstructions, causing financial losses to the appellant. The Arbitrator awarded Rs. 7,30,000/- under this claim. The High Court, however, held that the Arbitrator had exceeded his jurisdiction in granting this claim, as it was outside the terms of the contract.
  
  3. Compensation for Price Escalation:
  Claim (g) pertained to compensation for losses due to price escalation of materials during the extended period of completion. The Arbitrator awarded Rs. 11,70,000/-. The High Court found that the Arbitrator had acted beyond his jurisdiction, as the Supplemental Agreement specifically prohibited enhanced rates during the extended period.
  
  4. Additional Transportation Costs:
  Claim (i) involved compensation for additional transportation costs due to the non-availability of a suitable quarry. The Arbitrator awarded Rs. 13,35,000/-. The High Court held that the Arbitrator had mis-conducted himself by granting this claim, as it was beyond the terms of the contract.
  
  5. Losses Due to Non-availability of a Dumping Yard:
  Claim (k) related to losses due to the non-availability of a suitable dumping yard. The Arbitrator awarded Rs. 6,62,000/-. The High Court allowed this claim, finding no issue with the Arbitrator's decision.
  
  Supreme Court's Decision:
  The Supreme Court allowed the appeal, setting aside the High Court's order and restoring the Arbitrator's award. The Court held that the Arbitrator acted within his jurisdiction in allowing claims related to escalation of costs due to unforeseen circumstances and the State's failure to fulfill its obligations. The Court emphasized that the Arbitrator could compensate for extra costs incurred due to the State's failure to maintain law and order and provide necessary resources, even in the absence of specific escalation clauses in the contract.

  ---

• 2006 (11) TMI 723
  
  Issues Involved:
  1. Validity of the mortgage created by the petitioner.
  2. Requirement of registration for the mortgage document.
  3. Consideration for the mortgage agreement.
  4. Jurisdiction of the High Court u/s 227 of the Constitution of India.
  
  Summary:
  
  1. Validity of the Mortgage Created by the Petitioner:
  The petitioner filed a suit for permanent and mandatory injunctions seeking to restrain the respondent, Rajasthan State Industrial Development and Investment Corporation Limited, from dealing with the suit property. The petitioner claimed ownership of the property and contended that the mortgage was created by misrepresentation and without consideration. The court noted that the petitioner did not dispute his signatures on the mortgage documents but alleged that the contract was signed under misrepresentation.
  
  2. Requirement of Registration for the Mortgage Document:
  The appellate court held that the deposit of original title documents constituted a security for recovery of money and did not require registration u/s 59 of the Transfer of Property Act, 1882. The document dated 10.03.1997 was a memorandum of entry for the creation of an equitable mortgage and not a contract to create a mortgage, as the mortgage had already been created by the deposit of title deeds. Therefore, the document did not require registration.
  
  3. Consideration for the Mortgage Agreement:
  The petitioner argued that the mortgage was void for lack of consideration as it was created after the disbursement of the loan. The court referred to Section 127 of the Indian Contract Act, 1872, which states that anything done for the benefit of the principal debtor may be sufficient consideration for the surety. The court found that the mortgage was created as a result of forbearance to sue, which constituted valid consideration.
  
  4. Jurisdiction of the High Court u/s 227 of the Constitution of India:
  The court emphasized that its jurisdiction u/s 227 of the Constitution is limited to ensuring that an inferior court or tribunal functions within its authority and not to correct errors of law. The court noted that the petitioner had already had two rounds of litigation with adverse orders and that the matter in controversy related only to an interim order.
  
  Conclusion:
  The petition and the application were dismissed as being without merit. The court observed that the petitioner was trying to defeat the rights of the respondent Corporation conferred under the SFC Act, which was not permissible. The observations made were prima facie in nature and would not influence the decision in the main suit.

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• 2006 (11) TMI 722
  
  Issues involved: Interpretation of Office Memorandum dated 1.5.1987 regarding Provident Fund Scheme options for employees of Bureau of Indian Standards, applicability of Central Civil Services (Pension) Rules, 1972, and legal consequences of employees not opting for Pension Scheme.
  
  Interpretation of Office Memorandum dated 1.5.1987:
  The judgment dealt with employees of Bureau of Indian Standards who were part of the Contributory Provident Fund Scheme. The Office Memorandum dated 1.5.1987 required employees to choose between the Provident Fund Scheme and the Pension Scheme. Despite clear instructions in the Memorandum, some employees did not exercise their option by the specified date.
  
  Applicability of Central Civil Services (Pension) Rules, 1972:
  The Regulation made by Bureau of Indian Standards stated that employees who had chosen the Provident Fund Scheme before the commencement of the Regulations would continue under that scheme. However, due to the legal fiction created by the Office Memorandum, employees who did not opt for the Pension Scheme were deemed to have switched to it.
  
  Legal consequences of employees not opting for Pension Scheme:
  The judgment clarified that employees who did not opt for the Pension Scheme by the specified date were deemed to have become members of the Pension Scheme. Therefore, any subsequent attempt to revert to the Provident Fund Scheme was deemed illegal. The Ministry of Finance's stance on the Pension Scheme's applicability was deemed incorrect, as two legal fictions had been created, resulting in employees being part of the Pension Scheme.
  
  Conclusion:
  The Single Judge correctly allowed the writ petition, absolving the Union of India from financial liability. The Division Bench's modification of the order was deemed inappropriate. The appeal was dismissed, with no costs awarded.

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• 2006 (11) TMI 721
  
  Issues Involved:
  1. Conviction under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
  2. Evaluation of evidence and reliability of witnesses.
  3. High Court's grounds for setting aside the Special Court's judgment.
  4. Supreme Court's assessment of the High Court's judgment and reinstatement of the Special Court's decision.
  
  Summary:
  
  Issue 1: Conviction under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988
  The respondent, an Assistant Sub-Inspector, was convicted u/s 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 for demanding and accepting a bribe of Rs. 3500/- to avoid seizing rifles and arresting the complainant and his brother.
  
  Issue 2: Evaluation of evidence and reliability of witnesses
  The prosecution's case was supported by the complainant, Badan Singh (PW1), and independent witnesses Aditya Chobey (PW6) and Surender Rai Sharma (PW11). The trap was meticulously planned and executed, with phenolphthalein powder applied to the currency notes, which were later recovered from the respondent's pocket, confirming the bribe transaction.
  
  Issue 3: High Court's grounds for setting aside the Special Court's judgment
  The High Court set aside the Special Court's judgment on the following grounds:
  1. Discarded the testimony of Badan Singh, PW1, stating the upper right pocket of the shirt is not a normal place for keeping currency notes.
  2. Argued that 35 currency notes of Rs. 100/- denomination could not fit in the upper right pocket without being folded.
  3. Suggested that Badan Singh, PW1, might have forced the currency notes into the respondent's pocket.
  4. Considered the possibility of phenolphthalein powder traces on the respondent's hands due to resistance.
  
  Issue 4: Supreme Court's assessment of the High Court's judgment and reinstatement of the Special Court's decision
  The Supreme Court found the High Court's reasoning untenable and erroneous. It emphasized that the recovery of Rs. 3500/- from the respondent was corroborated by Badan Singh, PW1, and independent witnesses. The Court dismissed the argument that previous enmity led to false implication and upheld the Special Court's conviction. The Supreme Court restored the judgment of the Special Court, emphasizing the pervasive issue of corruption and the need for stringent measures against it.
  
  Conclusion:
  The Supreme Court set aside the High Court's judgment and reinstated the Special Court's decision, convicting the respondent u/s 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, and sentencing him to one year rigorous imprisonment and a fine of Rs. 500.

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• 2006 (11) TMI 720
  
  Issues Involved:
  1. Applications under Order 39 Rule 1 & 2 and Order XL Rule 1 read with Order XXXIX Rules 1 and 2 and Section 151 of the Code of Civil Procedure.
  2. Application under Order VII Rule 11 and Order 1 Rule 10 of the Code of Civil Procedure.
  3. Suit for specific performance, declaration, permanent injunction, and recovery of damages/mesne profits.
  
  Issue-wise Detailed Analysis:
  
  1. Applications under Order 39 Rule 1 & 2 and Order XL Rule 1 read with Order XXXIX Rules 1 and 2 and Section 151 of the Code of Civil Procedure:
  
  The plaintiff filed applications for interim injunction and appointment of a receiver, alleging that the defendants were threatening to cancel the allotment of the flat and create third-party interests. The plaintiff cited previous judgments to support the claim that there was a concluded agreement and that he would suffer irreparable loss if the defendants were not restrained. The defendants contested, arguing that the allotment was provisional and that additional charges were due. The court noted that for a concluded contract, the acceptance must be absolute and correspond with the terms of the offer. The court found that there were differences about the essential terms of the contract and that the plaintiff had not made the payments as directed by the court. Therefore, the court declined the relief for appointment of a receiver but confirmed the interim injunction restraining the defendants from creating third-party interests in the flat.
  
  2. Application under Order VII Rule 11 and Order 1 Rule 10 of the Code of Civil Procedure:
  
  The defendant No. 2 sought rejection of the plaint against him, arguing that no cause of action was disclosed against him as the agreement was executed by defendant No. 1, a corporate entity. The plaintiff countered that specific averments were made against defendant No. 2, who was allegedly responsible for the non-performance of contractual obligations. The court observed that the plaint disclosed a cause of action against defendant No. 2 and that the plaintiff was entitled to join all adverse claimants to avoid multiplicity of suits. The court held that the plaint should not be rejected against defendant No. 2 and dismissed the application for rejection or deletion.
  
  3. Suit for specific performance, declaration, permanent injunction, and recovery of damages/mesne profits:
  
  The plaintiff sought specific performance of an agreement to sell a flat, alleging full payment of the consideration and non-delivery of possession by the defendants. The defendants argued that the allotment was provisional and that additional charges were due. The court considered whether there was a concluded agreement and found that there were differences about the essential terms. The court held that the plaintiff was not entitled to an interim mandatory injunction for possession but confirmed the interim injunction restraining the defendants from creating third-party interests in the flat. The court also noted that the plaintiff could recover damages/mesne profits if he succeeded in the suit.
  
  Conclusion:
  
  The court declined the relief for appointment of a receiver and interim mandatory injunction for possession but confirmed the interim injunction restraining the defendants from creating third-party interests in the flat. The application for rejection of the plaint against defendant No. 2 was dismissed, and the court held that the plaint disclosed a cause of action against him. The suit for specific performance, declaration, permanent injunction, and recovery of damages/mesne profits was allowed to proceed.

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• 2006 (11) TMI 719
  
  Issues Involved:
  1. Acquittal of the accused u/s 138 of the Negotiable Instruments Act, 1881.
  2. Material alteration of the cheque u/s 87 of the Negotiable Instruments Act.
  3. Presumption of liability u/s 139 of the Negotiable Instruments Act.
  4. Rebuttal of presumption by the accused.
  
  Summary:
  
  1. Acquittal of the accused u/s 138 of the Negotiable Instruments Act, 1881:
  The complainant appealed against the acquittal of the accused by the learned J.M.F.C, Canacona, for an offense u/s 138 of the Negotiable Instruments Act, 1881. The complainant alleged that the accused issued a cheque for Rs. 70,000/- which was dishonored due to insufficient funds. Despite a demand notice, the accused failed to repay the amount, leading to the filing of the complaint.
  
  2. Material alteration of the cheque u/s 87 of the Negotiable Instruments Act:
  The learned Magistrate concluded that the complainant had filled in the cheque without the accused's consent, constituting a material alteration, rendering the cheque void u/s 87 of the Act. However, the High Court found that the complainant's evidence showed he filled in the cheque with the accused's implied consent, and there was no material alteration.
  
  3. Presumption of liability u/s 139 of the Negotiable Instruments Act:
  The High Court emphasized that u/s 139, the Court "shall presume" the liability of the drawer unless the contrary is proved. The complainant was entitled to the presumption that the cheque was issued for discharge of a debt or liability. The accused's inconsistent statements and lack of evidence failed to rebut this presumption.
  
  4. Rebuttal of presumption by the accused:
  The accused claimed he had repaid the borrowed amount and the cheque was given as security. However, he failed to provide consistent or credible evidence to support this claim. The High Court noted that the accused's conflicting statements and lack of documentary evidence were insufficient to disprove the presumptions in favor of the complainant.
  
  Conclusion:
  The High Court set aside the acquittal, convicted the accused u/s 138 of the Act, and sentenced him to ten days of simple imprisonment and a compensation of Rs. 85,000/- to the complainant, with a default sentence of three months' simple imprisonment. The sentence was suspended for four weeks to allow the accused to appeal to the Supreme Court.

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• 2006 (11) TMI 718
  
  Issues involved:
  The issues involved in the judgment include the rejection of the request to examine three witnesses in defense, the right of the accused to adduce evidence in support of their defense, and the refusal to summon expert witnesses by the trial court.
  
  Request to Examine Witnesses in Defense:
  The applicants filed a revision against the order rejecting their request to examine three witnesses in defense out of the total nine sought. The witnesses in question were Dr. Anil Agrawal, Prof. Maulana Azad Medical College, New Delhi, Dr. R.K. Wright from the USA, and Mr. P.K. Satyanathan, District Government Pleader, Nagpur. The prosecution alleged offenses under Sections 302, 376(2)(g), 201 of the Indian Penal Code, relating to the death of a maid servant due to throttling and rape. The defense sought to examine these witnesses to establish their defense, which was contested by the prosecution.
  
  Right to Adduce Evidence in Defense:
  The defense argued that under Section 233 of the Criminal Procedure Code, the accused have the right to adduce any evidence in support of their defense. They contended that the expert witnesses were necessary to establish their defense and rebut the prosecution's evidence. The defense emphasized the importance of a fair trial and the accused's opportunity to present evidence of their choice.
  
  Refusal to Summon Expert Witnesses:
  The trial court refused to summon Dr. Anil Agrawal and Dr. R.K. Wright, stating that the prosecution had already examined expert witnesses on the cause of death, and the defense had cross-examined them. The defense's request to summon P.K. Satyanathan was also denied based on his role as Government Pleader. The defense argued that the expert witnesses' evidence was crucial to establish their defense and that the refusal to summon them was unjust.
  
  Legal Precedents and Decision:
  The judgment cited legal precedents emphasizing the accused's right to adduce evidence in their defense and summon witnesses of their choice. The court held that the accused's request to summon the expert witnesses was valid, and their evidence was relevant to the case. The court overturned the impugned order and directed the trial court to summon the witnesses in defense, emphasizing the importance of a fair trial and the accused's right to present their defense effectively.
  
  This summary provides a detailed overview of the issues involved in the judgment, including the rejection of witness examination requests, the right of the accused to adduce evidence, the refusal to summon expert witnesses, legal arguments presented by both parties, and the court's decision based on legal precedents and considerations of fairness in the trial process.

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• 2006 (11) TMI 717
  
  Issues Involved:
  1. Whether the Central Bureau of Investigation (CBI) was obligated to register a First Information Report (FIR) based on an anonymous complaint.
  2. The legality of the appellant's transfer and the alleged mala fide intent behind it.
  3. The jurisdiction and procedural adherence of the CBI in conducting preliminary inquiries.
  
  Summary:
  
  1. Obligation to Register FIR:
  The appellant contended that the CBI was obligated to register an FIR and conduct a full-fledged investigation into the anonymous complaint alleging corrupt practices and financial irregularities. The Supreme Court noted that while ordinarily, u/s 154 of the Code of Criminal Procedure (CrPC), a report relating to a cognizable offense should lead to an FIR, it is not unknown for an investigating officer to carry out a preliminary inquiry to ascertain the truth of the allegations. The Court cited precedents, including *State of Uttar Pradesh v. Bhagwant Kishore Joshi* and *State of Haryana v. Bhajan Lal*, affirming that preliminary inquiries are permissible before registering an FIR, especially in cases involving vague or anonymous complaints.
  
  2. Legality of Transfer:
  The appellant argued that his transfer was mala fide and a consequence of his complaint and statements made during the inquiry. The Supreme Court observed that the appellant's transfer was on administrative grounds and that the Central Administrative Tribunal had dismissed his application challenging the transfer. The Court emphasized that the presence of the appellant at Nagpur was not necessary for the CBI's inquiry, as the CBI has a national network and can reach the appellant if needed.
  
  3. Jurisdiction and Procedural Adherence of CBI:
  The appellant questioned the CBI's decision not to convert the preliminary inquiry into a regular case. The Supreme Court highlighted that the CBI Manual, approved in *Vineet Narain v. Union of India*, provides for a preliminary inquiry to distinguish between business risks and mala fide conduct. The Court noted that the CBI followed the procedure laid down in the Manual and that the Central Vigilance Commission had endorsed the departmental proceedings against the concerned officers. The Court reiterated that it is not within the province of the court to direct the investigative agency on how to conduct its investigation unless an exceptional case is made out, which was not the case here.
  
  Conclusion:
  The Supreme Court dismissed the appeal, upholding the CBI's decision not to register a regular case and the appellant's transfer. However, the Court set aside the order directing the appellant to pay a cost of Rs. 5,000/-. The appeal was dismissed with no order as to costs, subject to the observations and directions mentioned.

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• 2006 (11) TMI 716
  
  Issues involved: Confirmation of Service Tax demand against a consultancy firm situated in Singapore providing services to a firm in Goa without jurisdiction.
  
  Summary:
  
  1. The Appellate Tribunal CESTAT MUMBAI addressed the issue of the confirmation of a Service Tax demand of Rs. 3,56,015/- along with penalties against a consultancy firm based in Singapore providing services to a firm in Goa. The demand was confirmed against the Singapore firm, raising questions about the jurisdiction of the Indian Service Tax authorities over a foreign entity.
  
  2. The appellant's advocate clarified that the demand was not confirmed against the service receiver. It was highlighted that during the period of demand from 1999-2000 to 16-8-2002, there were no provisions for the recovery of Service tax from the service receiver. Citing the Tribunal's decision in the case of Bajaj Auto Ltd. v. CCE & C, Aurangabad, it was argued that the provisions introduced from 16-8-2002 could not have a retrospective effect.
  
  3. Upon hearing the submissions, the Tribunal acknowledged that the appellant, a Singapore firm, did not fall within the jurisdiction of the Indian Service tax authorities. Recognizing a prima facie case on merits, the Tribunal decided to dispense with the condition of pre-deposit of duty and penalty.
  
  4. Given the straightforward nature of the issue, the Tribunal scheduled the appeal for final disposal on 27-11-06, aiming for a prompt resolution of the matter.

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• 2006 (11) TMI 715
  
  Issues Involved:
  1. Validity of the High Court's decision to set aside the findings of the consolidation authorities.
  2. Determination of co-tenure rights in respect of Khata No. 111.
  3. Necessity of including all co-tenure holders as parties in the writ application.
  
  Summary:
  
  1. Validity of the High Court's Decision:
  The High Court reversed the findings of the Deputy Director, Consolidation, which had granted co-tenure rights to the appellants in some plots of Khata No. 111. The High Court held that the land in dispute did not devolve upon Adhin from Saltanati, and the resettlement by the landlord created a fresh settlement, thus changing the identity of the holding. The Supreme Court upheld the High Court's decision, stating that the High Court did not interfere with the findings of fact but declared the law based on admitted facts and findings by the consolidation authorities. The High Court's exercise of jurisdiction under Article 226 of the Constitution was deemed appropriate as it corrected the legal errors based on the facts presented.
  
  2. Determination of Co-Tenure Rights:
  The appellants claimed co-tenure rights based on the ancestral property initially belonging to Saltanati. However, the land was later recorded in the name of Adhin, and subsequently, in the names of his successors, respondent Nos. 1 to 3. The Supreme Court agreed with the High Court that the identity of the land had changed due to the resettlement in favor of Adhin, and thus, the appellants could not claim co-tenure rights. The Court concluded that the Deputy Director, Consolidation, erred in granting co-tenure rights to the appellants for some plots of Khata No. 111.
  
  3. Inclusion of All Co-Tenure Holders:
  The appellants argued that the writ petition should have been dismissed due to the non-inclusion of two co-tenure holders, Ram Bachan and Subhash Chandra, as parties. The Supreme Court rejected this argument, stating that since the land was resettled and recorded in the name of Adhin, Ram Bachan and Subhash Chandra were not necessary parties. Consequently, the writ petition's maintainability was upheld, and the question of abatement on the death of Siya Ram (father of Subhash Chandra) did not arise.
  
  Conclusion:
  The Supreme Court dismissed the appeal, affirming the High Court's judgment that respondent Nos. 1 to 3 were the sole tenure holders of the entire land of Khata No. 111 and Khata No. 13. The appellants' claims for co-tenure rights were rejected, and the writ petition's maintainability was confirmed despite the non-inclusion of certain parties.

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• 2006 (11) TMI 714
  
  Issues involved: Interpretation and application of Section 31 of the Criminal Procedure Code, 1973.
  
  Issue 1: Factual Background
  The case involved the kidnapping of two boys, Sudhir Kumar and Sushil Kumar, aged about 10 to 12 years, who went missing on 29th December, 1994. The appellant was proceeded against for alleged offences under Sections 302, 201, 364, 365, and 120B of the Indian Penal Code, 1860. The victims were found dead, and the appellant was convicted for certain offences based on the evidence.
  
  Issue 2: High Court's Decision
  On appeal, the High Court accepted that the prosecution failed to establish that the boys were murdered by the appellant. However, the High Court upheld the finding of the learned Sessions Judge regarding the appellant's involvement in the offence under Section 364 of the IPC. The High Court emphasized the impact of the abduction on the victims' lives and their families, leading to a total sentence of 20 years of rigorous imprisonment.
  
  Issue 3: Error in Sentencing
  The appellant's counsel argued that the Trial Judge and the High Court erred in sentencing the appellant to 20 years of rigorous imprisonment under Section 31 of the Criminal Procedure Code. The appellant was charged only under Sections 364 and 365 of the Indian Penal Code, with maximum sentences of 10 years and 7 years respectively.
  
  Issue 4: Legal Provisions
  Section 31 of the Criminal Procedure Code allows for sentencing in cases of conviction of multiple offences at one trial. The section specifies that the total period of imprisonment for consecutive sentences should not exceed 14 years, as per the provisos appended to the section.
  
  Judicial Precedents
  In Kamalanantha and Ors. v. State of T.N. AIR 2005 SC 2132, the Supreme Court held that even life imprisonment can be subject to consecutive sentences under Section 31 of the CrPC. In K. Prabhakaran v. P. Jayarajan AIR 2005 SC 688, the Court recognized the power to impose consecutive sentences but did not address the provisos. Zulfiwar Ali and Anr. v. State of U.P. 1986 A.L.J. 1177 emphasized the limitations on the aggregate of consecutive sentences to not exceed 14 years.
  
  Court's Decision
  The Supreme Court found that the High Court erred in sentencing the appellant to 20 years of rigorous imprisonment, exceeding the maximum limit of 14 years under Section 31 of the CrPC. Considering the appellant had already spent more than 12 years in custody, the Court directed the appellant to be sentenced to the period already undergone. The appeal was allowed, and the appellant was to be released if not required in any other case.

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• 2006 (11) TMI 713
  
  The Delhi High Court admitted the case and identified substantial questions of law. The court remanded the case to the Income Tax Appellate Tribunal for a fresh decision due to a retrospective amendment. The appeal was disposed of accordingly.

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• 2006 (11) TMI 712
  
  Issues involved:
  Application of Sections 177 and 178 of Code of Criminal Procedure (Code) in determining jurisdiction of the Court.
  
  Details of the judgment:
  
  Issue 1: Jurisdiction of the Court based on continuing offence
  - The case involved a dispute where the complaint alleged ill-treatment and dowry demands by the appellants.
  - The High Court dismissed the criminal revision application, stating that the offence being a continuing one, the Datia Court had jurisdiction.
  - The High Court's decision was based on distinguishing a previous case and interpreting the term "continuing offence."
  - The Supreme Court analyzed the provisions of Sections 177 and 178 of the Code to determine jurisdiction.
  - The Court referred to previous judgments to define a continuing offence as one that persists until the rule is obeyed or complied with.
  - It was emphasized that the offence cannot be considered continuing solely because the complainant left her matrimonial home.
  
  Issue 2: Interpretation of "ordinarily" in Section 177 and 178 of the Code
  - The Court discussed the term "ordinarily" in Section 177 and 178, which determines the local jurisdiction of the Court.
  - Section 178 allows for inquiry or trial in multiple local areas in cases of uncertainty or continuing offences.
  - Previous judgments were cited to explain the application of Clause (c) of Section 178 in cases of continuing offences.
  - The Court differentiated cases where the offence was committed in different local areas and where it was a continuing offence.
  
  Conclusion:
  - The Supreme Court set aside the High Court's order and directed the transfer of the criminal case to the Court of Chief Judicial Magistrate, Jabalpur.
  - The Court also directed the Chief Judicial Magistrate, Jabalpur to issue notice to the complainant and accommodate her in the hearing dates.
  - The appeal was allowed with the specified directions to ensure justice and proper jurisdiction in the case.

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• 2006 (11) TMI 711
  
  Issues involved:
  The issue involved in this case is whether the initiation of proceedings under section 147(b) of the Income Tax Act, 1961 was legally permissible based on the excessive relief allowed to the assessee under section 80HH of the Act during the original assessment.
  
  Judgment Summary:
  
  The Income Tax Appellate Tribunal referred a question of law to the High Court regarding the applicability of section 147(b) in a case where excessive relief was allowed to the assessee under section 80HH of the Income Tax Act, 1961. The Tribunal held that the Assessing Officer could not re-appraise the information available at the time of the original assessment to reduce the deduction allowed.
  
  The assessment for the assessee was initially made allowing deduction under section 80HH, but a notice under section 148 was issued to reduce the deduction on the grounds of excessive relief. The Tribunal, following relevant judgments, found that there was no new evidence to support the re-assessment and upheld the plea of the assessee.
  
  Upon reviewing the order of re-assessment, the High Court noted that the only reason mentioned was the incorrect allowance of deduction after the completion of the assessment. Referring to previous judgments, including one by the Supreme Court, the High Court emphasized the requirement of specific, reliable, and relevant information for reopening an assessment under section 147(a).
  
  Considering the lack of fresh facts or information exposing untruthfulness in the facts disclosed by the assessee, the High Court agreed with the Tribunal that the initiation of re-assessment proceedings was not permissible. Mere change of opinion or drawing a different inference from the same facts could not justify re-assessment.
  
  Therefore, the High Court answered the question referred against the revenue and in favor of the assessee, concluding that the initiation of re-assessment proceedings was not justified in this case.

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• 2006 (11) TMI 710
  
  Issues involved: Appeal against order passed by Deputy Commissioner dismissing revision and confirming order by Assistant Commissioner after condoning delay in filing appeal.
  
  Summary:
  The writ petition was filed challenging the order passed by the Deputy Commissioner, Bangalore District, which dismissed the revision and upheld the order of the Assistant Commissioner, Ramanagaram sub-division. The petitioner contended that the Assistant Commissioner erred in entertaining the appeal after a delay of 14 years without notifying the respondents. The court noted that condoning delay without notice to the respondents is improper as the appellate authority must consider sufficient cause for delay after notifying the parties. The order of the Assistant Commissioner was deemed erroneous, and the Deputy Commissioner's decision confirming it was set aside. The case was remitted back to the Assistant Commissioner for fresh disposal in accordance with the law.
  
  The main contention raised in the writ petition was that the Assistant Commissioner entertained the appeal after a significant delay of 14 years without notifying the respondents. The court emphasized that condoning delay without issuing notice to the respondents is against established legal principles. It was held that the appellate authority must assess whether sufficient cause exists for condoning the delay after notifying the parties involved. Since the delay was condoned without proper notice, the order of the Assistant Commissioner was deemed erroneous.
  
  The court observed that the order passed by the Assistant Commissioner, which was confirmed by the Deputy Commissioner, was unsustainable due to the improper condonation of delay without notifying the respondents. It was emphasized that the appellate authority gains jurisdiction to decide on the appeal only after the delay is properly condoned in accordance with the law. Therefore, the decision to set aside the order of the Assistant Commissioner and remit the case for fresh disposal was made to ensure compliance with legal procedures.
  
  In conclusion, the writ petition was allowed, and the order passed by the Deputy Commissioner confirming the Assistant Commissioner's decision was set aside. The case was remitted back to the Assistant Commissioner for reconsideration after affording the petitioner an opportunity to file objections to the application for condonation of delay. The parties were directed to appear before the Assistant Commissioner on a specified date for further instructions.

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• 2006 (11) TMI 709
  
  Issues Involved:
  1. Whether the complaint u/s 138 of the NI Act was time-barred.
  2. Determination of the starting point for the limitation period for filing a complaint u/s 138 of the NI Act.
  
  Summary:
  
  Issue 1: Whether the complaint u/s 138 of the NI Act was time-barred.
  
  The respondent filed a complaint u/s 138 of the NI Act against M/s. Niket Enterprises and its proprietor for dishonour of cheques. The learned MM dismissed the complaint as time-barred, concluding that the cause of action arose on 15.12.1996, and the complaint should have been filed by 15.1.1997. However, it was filed on 16.1.1997. The learned ASJ reversed this decision, holding that 15.1.1997 was a holiday, and thus, the complaint filed on 16.1.1997 was within the period of limitation u/s 4 of the Limitation Act. The High Court, however, upheld the MM's decision, stating that the complaint was indeed time-barred as it was filed beyond the prescribed period.
  
  Issue 2: Determination of the starting point for the limitation period for filing a complaint u/s 138 of the NI Act.
  
  The High Court examined whether the 15-day period for the drawer to make payment should start from the date the notice is deemed served or from the date the complainant receives the acknowledgment. The Court referred to Section 138 of the NI Act and relevant case law, including the Supreme Court judgments in SIL Import USA v. Exim Aides Silk Products and K. Bhaskaran v. Sankaran Vaidhyan Balan. It was held that the 15-day period starts from the date the notice is received by the drawer or deemed served if returned unclaimed. In this case, the period started from 28.11.1996/29.11.1996, making the last date for filing the complaint 13/14.1.1997. Since the complaint was filed on 16.1.1997, it was beyond the limitation period, and the Court dismissed the complaint as time-barred.

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