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2015 (3) TMI 1447
Prosecution under Section 77A(11) of the Companies Act, 1956, in the absence of an offer or public announcement for a buyback of shares - exoneration of the petitioners by the Appellate Tribunal - HELD THAT:- It was necessary for the respondent to demonstrate that there was an offer or public announcement of buyback of equity shares. Unless that is there the offence would not be complete. As already stated, there was no public announcement. Similar view has been taken by the Tribunal also. For these reasons, the prosecutions against the petitioners cannot be continued as the same amounts to abuse of process of court.
The proceedings pending against the petitioners in the court of Metropolitan Magistrate, 47th Court, Esplanade, Mumbai vide criminal case no. 30/SS/06 are hereby quashed - Petition allowed.
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2015 (3) TMI 1446
Enterprise under Section 2(h) of the Competition Act, 2002 or amenable to Hon’ble Commission’s jurisdiction and can be investigated under the Competition Act, 2002 - DDA owing to its statutory functions, being a State under Article 12 of the Constitution of India - functioning of DDA, can be construed to be in violation of the Competition Act, 2002 or not?
Refusal to decide the issue of jurisdiction as a preliminary issue and directing the same to be decided at the time of final determination of the matter - HELD THAT:- No direction was needed for CCI to, at the time of final determination to consider the objection taken by appellants as to jurisdiction. There was no other question for adjudication in the writ petition. Had the learned Single Judge been of the opinion that the objection raised by the appellants of the jurisdiction of the CCI over the appellants was not to be decided as a preliminary issue and was to be dealt with at the time of final determination only, as ordered by the CCI also on 1st May, 2014, the writ petition would have been dismissed and there would have been no need for the learned Single Judge to issue a direction “that the CCI will determine the issue of jurisdiction. If the CCI were to come to a conclusion that it has jurisdiction in the matter, it will immediately proceed to decide the matter on merits”. The very fact that the writ petition was not dismissed but was disposed of with the direction aforesaid, read with the grievance urged in the petition, leads to unequivocal conclusion that the direction in para no.5 of the order dated 21st January, 2015 though not most happily worded is for the issue of a jurisdiction to be decided as a preliminary issue i.e. in the first instance and only if CCI were to hold that it has jurisdiction in the matter, is the CCI to proceed with the decision on merits. It also cannot be held that the use of the words in para 5 of the order dated 21st January, 2015 “immediately proceed to decide the matter on merits” negate the said intention.
Neither the CCI in its order dated 4th February, 2014 has so stated nor has the counsel for the respondent No.1 CCI argued that there is any impediment to the legal issues raised by the appellants to the jurisdiction of the CCI being decided in the first instance.
Conclusion - The High Court clarified that the CCI must first decide the jurisdictional question as a preliminary issue. Only if the CCI concluded that it had jurisdiction should it proceed with the merits of the case - The order dated 23rd February, 2015 of the learned Single Judge of dismissal of CM No.2982/2015 filed by the appellants for clarification of the order dated 21st January, 2015 in the writ petition.
Appeal allowed.
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2015 (3) TMI 1445
Jurisdiction of the Micro and Small Enterprises Facilitation Council under the MSMED Act - order passed in conciliation proceedings or an order passed under Section 18 of MSMED Act, 2006 - prevalence of MSMED Act, 2006 over the Arbitration & Conciliation Act, 1996 or not - prevalence of MSMED Act over the contractual arbitration agreement - validity of appointment of a sole arbitrator as per the Arbitration Agreement - maintainbility of Arbitration Petition.
HELD THAT:- In the present case, BSNL has throughout contended that the Council has no mandate to proceed with the arbitration proceedings, and has challenged the jurisdiction of the Arbitral Tribunal (Council) on that ground. The Council has, after hearing the Parties, decided that it has jurisdiction to proceed with the arbitration between the Parties. BSNL is no doubt aggrieved by this decision of the Council. However, BSNL cannot approach this Court with a prayer that the mandate of the Council (Arbitrator) stands terminated. The Arbitral Tribunal having rejected the plea of BSNL and having decided that it has jurisdiction to proceed with the arbitration is entitled in law to continue with the arbitral proceedings and make an arbitral award under subclause (5) of Section 16 of the Act, and BSNL if aggrieved may challenge the final award as provided in subclause (6) of Section 16 of the Act.
The Judgment of the Division Bench of this Court in M/s. Steel Authority of India Ltd. and another vs. Micro, Small Enterprises Facilitation Council, through Joint Director of Industries, Nagpur Region, Nagpur [2010 (8) TMI 1100 - BOMBAY HIGH COURT] holding that in the facts of that case the Council did not have the jurisdiction to proceed with the arbitration is a decision given in a Writ Petition filed by M/s. Steel Authority of India [2010 (8) TMI 1100 - BOMBAY HIGH COURT] challenging the jurisdiction of the Council. A similar relief cannot be sought by BSNL by way of a Petition filed under Sections 14 and 15 of the Act.
The earned Single Judge of this Court referred to the decision in Steel Authority of India Ltd. [2013 (4) TMI 412 - BOMBAY HIGH COURT] and held that the arbitrator appointed as per the agreement between the parties can proceed with the arbitration proceedings irrespective of Section 18 of the MSMED Act and that the mandate of the arbitrator has not come to an end even on the ground that the arbitration proceedings were delayed, because the application under Section 14 of the Act was made by the Petitioner in that matter after all the pleadings between the parties were filed before the learned arbitrator and he had fixed the matter for final hearing.
The above Petition is not maintainable under Section 14 and/or 15 of the Arbitration and Conciliation Act, 1996, and the same is rejected. It is therefore not necessary for me to consider the other submissions advanced on behalf of BSNL pertaining to the retrospective applicability of the MSMED Act and the claim of PIPL being time barred. In view thereof, the above Petition is dismissed with a clarification that the dismissal of the Petition shall not preclude BSNL from pursuing any other remedy available to them in law.
It is therefore clear that by the said letter BSNL has merely used the terms which are used under Section 62(3) of the Act of 1996. In fact, admittedly BSNL has despite rejecting the invitation for conciliation, throughout attended all the hearings before the Council, and has also advanced their submissions. The question therefore of the Officers of BSNL or the Advocate for BSNL having committed contempt as alleged by PIPL, does not arise and the said Notice of Motion is dismissed with costs.
The Learned Advocate appearing for BSNL has prayed that the Council be directed not to proceed with the arbitration proceedings for a period of four weeks from the date of this Order. The said prayer is granted. In view thereof, the Council shall not proceed with the arbitration proceedings upto 28th April, 2015.
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2015 (3) TMI 1444
Seeking dissolution of M/s. Electronic Circuits Limited in liquidation has been filed under Section 481 of the Companies Act, 1956 - HELD THAT:- In the circumstances obtaining, this Court considers it appropriate to order dissolution of the Company M/s. Electronic Circuits Limited (in Liquidation) as provided under Section 481 of the 1956 Act. Accordingly, the Company in Liquidation stands dissolved under Section 481 of the 1956 Act. The Official Liquidator is directed to transfer the balance amount Rs. 4,55,858.10 in the Public Account of India in Reserve Bank of India under Section 555(2) of the 1956 Act.
The company application disposed of accordingly.
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2015 (3) TMI 1443
Oppression and Mismanagement - Validity of transfer of shares - section 397 & 398 of the Companies Act, 1956 - Appointment of Mr. R.K. Malhotra as Managing Director - Cancellation of Builder's Agreements for office spaces LG 1 to LG 4 - Payment of rent by the Oriental Bank of Commerce for LG 1 to LG 4 and G 18 - Participation rights of the three groups on the Board of the Company.
Validity of the Transfer of Shares to the Bharti Group - HELD THAT:- Since the Bharti Group hold 1/3rd shares, it is entitled to a proportionate representation. Admittedly, since the very inception of its membership, the Bharti Group has had proportionate representation. There are three groups, the Bharti Group represented by Mr. S.K. Bharti, the Malhotra Group represented by Shri R.K. Malhotra and the Gupta Group represented by Shri K.R. Gupta. Each one of the groups hold 1/3rd shares of the Company and since a long time each has had 1/3rd representation on the Board of the Company. In these circumstances, the CLB cannot be said to have erred in directing that each group would be entitled to an equal participation on the board - As there are serious disputes in respect of the functioning of the Company and there is distrust amongst the three groups, it would be in the interest of the Company and its shareholders that the Bank operation is carried out by at least two of the Directors. There is no thus infirmity in the CLB directing that the Bank operation shall be by two Directors jointly - the appeal by the Company is thus liable to be dismissed.
Appointment of Mr. R.K. Malhotra as the Managing Director - Cancellation of Builder's Agreements for office spaces LG 1 to LG 4 - HELD THAT:- The challenge raised by the Bharti Group to the CLB upholding the appointment of Mr. R.K. Malhotra as the Managing Director is not sustainable. The CLB has returned a finding of fact, that effective from July 1997, Mr. S.K. Bharti ceased to be a functional Director and from March 1998, Mr. R.K. Malhotra had been a functional Director having complete control and management of the affairs of the Company. The CLB has noted that even without the designation of the Managing Director, Mr. R.K. Malhotra had been discharging the functions of a Managing Director and has in these circumstances held that his designation as a MD with or without the knowledge and consent of the Bharti Group could not be considered as an act of oppression - there are no infirmity with the reasoning and finding of the CLB that as Mr. R.K. Malhotra had been acting as an MD and discharging all functions as Managing Director since March 1998 even without being so designated formally, then his being so designated clearly does not amount to an act of oppression.
The Company and the other Directors have not shown that any action has been taken against the other buyers whose names are reflected in the said statement. If the record qua the Bharti Group is not available, then how is it possible that the records of the other buyers of the same period are available? The Bharti Group has been clearly singled out. The order of the CLB to this extent is clearly not sustainable - the action of the Company and the other Directors in cancelling the four Builder’s agreements dated 15th June 1994 in respect of LG 1 to LG 4 of the Bharti Group being wrongful, burdensome, harsh and oppressive is liable to be set aside.
Payment of rent by the Oriental Bank of Commerce for LG 1 to LG 4 and G 18 - HELD THAT:- It is apparent that the Bank before the CLB made a statement on 30.08.2005 that it was willing to vacate the premises but the premises was not vacant on the said date, the Bank had only expressed its willingness to vacate. There is a difference in willingness to vacate and actual vacation of the premises. The Bank has submitted that it actually vacated the premises on 21.11.2005. Though the Bank issued a legal notice to the parties offering to hand over the keys, however the keys were not actually handed over. Both the Bharti Group and Company demanded the keys from the Bank. Faced with the conflicting demand, the course of action for the Bank was to approach the CLB where the proceedings were pending offering to deposit the keys in court - since the Bank had prayed to this court by its reply dated 21.08.2008 to deposit the keys in Court, the Bank would not be liable to pay any rental after the said date. As it was obligatory on the part of the Bank to approach the court for deposit of the keys in court, similarly, it was obligatory on the part of the Company and the Bharti Group to accept the prayer made by the Bank in its reply dated 21.08.2008 to deposit the keys in court. The Bank is thus liable to pay rent for the said premises comprising of LG 1 to LG 4 and G 18 till 21.01.2008.
Seeking a restrain against the Company from passing any resolution as proposed in the notice dated 08.08.2014 - HELD THAT:- As the admitted case of the Bharti Group is that there are three groups each holding 1/3rd shares of the Company, and further it is on this very ground that the CLB has directed that Mr. S.K. Bharti shall continue as a Director on the board, the Bharti Group cannot challenge the right of Mr. K.R. Gupta to continue on the board to represent his group which holds 1/3rd shares of the Company. Each of the three groups is entitled an equal participation on the Board of the Company. Mr. K.R. Gupta is thus entitled to be a Director on the board of the Company and further is also entitled to nominate in his place a Director on the board to represent his group in case for any reason he is not in a position to continue as a Director.
The application are disposed off.
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2015 (3) TMI 1442
Dishonour of Cheque - seeking to grant leave to prefer an appeal against the judgment of acquittal acquitting the respondent under Section 138 of the Negotiable Instruments Act - invocation of presumption under Section 118 and 139 of the Negotiable Instruments Act - onus to prove the nature of cheque - cheque issued for discharge of legally subsisting liability or not - HELD THAT:- A bare perusal of the entire documents would show that the amount of Rs. 50,000/- was paid by the petitioner to the respondent by way of Ex.D.1/Cheque dated 29.12.2006, which is also evidenced by Ex.D.2/Bank statement of the Complainant. The respondent by examining the witnesses D.W.1/Manoharan, D.W.2/Sengutuvan and the respondent himself deposing as D.W.3 and marking Ex.D.1 to Ex.D6 has rebutted the presumption. So, now the onus is shifted to the petitioner to prove that the cheque has been issued for discharging the legally subsisting liability.
Even though the petitioner herein in his complaint has stated that the respondent had borrowed the money in the month of October 2006, he has not filed any scrap of papers to prove that he had lent the amount to the respondent and his capacity to lend such amount. Further, the petitioner who was examined as P.W.1 had deposed in his cross-examination that he is an Income Tax assessee, however he has not mentioned the amount alleged to have lent to the respondent in his IT returns.
The Trial Court has rightly held that the respondent has rebutted the presumption under Section 139 of the Negotiable Instruments Act. When the onus is shifted to the petitioner to prove that the cheque was issued for discharging the legally subsisting liability, the petitioner did not prove the same. Hence, there is no reason for granting leave to prefer an appeal against the acquittal.
The Criminal Original Petition is dismissed.
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2015 (3) TMI 1441
Waiver of pre-deposit - undue hardship - challenge to the order of Tribunal - It was held by Tribunal that 'If the Appellant is of the opinion that a part of the adjudicated liability had already been deposited, it may bring it to the attention of the Tribunal itself. In that event subject to the satisfaction of the Tribunal, unless already considered, nothing prevents it from passing appropriate orders for modification or clarification of its order dated 4-12-2014.'
HELD THAT:- Petition dismissed.
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2015 (3) TMI 1440
Application under section 439 Cr.P.C. seeking for bail - illegal diversion of money - crime against public at large having wide ramification over the society - parity in granting bail - It is contended that since the petitioner has not moved the learned Court below for bail after submission of charge sheet, this bail application should not be entertained.
HELD THAT:- The petitioner was one of the Directors of Prism Heights Company and she was directly involved in the affairs of the AT Group of Companies. The contentions raised by the learned counsel for the petitioner that the petitioner has not played any active role with regard to the collection of any amount from the public by AT Group of Companies is not acceptable in as much as it has come on record that the petitioner used to motivate the depositors to invest in AT Group of Companies for higher returns. The further contention of the learned counsel for the petitioner that she was neither the Director of AT Group of Companies nor connected in the alleged Chit-Fund Scam prima facie appears to be not correct as the materials on record indicate that the petitioner was frequently visiting Bhubaneswar to attend the meetings of the Directors of AT Group of Companies - The contentions that the amount transferred from the accounts of AT Group of Companies to the account of the petitioner were utilized by Prism Heights Company for the payment of artists, directors, cameraman, staff etc. in the production of tele serials is not borne out of the charge sheet and there is also no documentary evidence in support of such contentions.
The materials on record further indicate that there was deep-rooted criminal conspiracy between the petitioner and some co-accused persons including accused Pradeep Kumar Sethy with the patronage of some politicians, police officers, executives and other influential persons as a result of which innocent depositors were allured to invest their hard earned money with AT Group of Companies and the petitioner being a motivator has played crucial role in cheating the public and misappropriating more than a crore of rupees.
Considering the nature of accusations, the punishment prescribed for the offences under which charge sheet has been submitted, prima facie availability of supporting materials to establish such accusations, the continuance of further investigation to unearth many vital links, role played by the petitioner in the entire episode, the impact of such economic offences on the society particularly on the common man who are poor, downtrodden, underprivileged and belong to the middle class families waiting with distraught tearful eyes and anguish to get back their investment in spite of setting up of Commission of Enquiry to probe multi-crore Chit-Fund Scam by the State Government since July, 2013 and creation of Corpus Fund for the protection of interest of the depositors, merely because the petitioner is a woman and merely because some of the co-accused persons have been released on bail, in the larger interests of public and State, the petitioner cannot be released on bail at this stage.
Bail application dismissed.
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2015 (3) TMI 1439
Classification of goods - Printed Paper Labels - classifiable under 4818.90 and were exempted vide Sr. No. 13 of Notification No. 228/86-C.E., dated 3-4-1986 or not - HELD THAT:- Printed paper labels classification was not under dispute and the said entry is chargeable to NIL rate of duty under Notification No. 228/86, dated 3-4-1986. In the appeal Hon’ble Supreme Court in [1997 (7) TMI 138 - SUPREME COURT] has held that in addition to the other type of labels, printing paper label is product of printing industry and therefore chargeable to NIL rate of duty. The said product is therefore not chargeable to duty.
The appeal filed by the Revenue is dismissed.
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2015 (3) TMI 1438
Levy of tax on sales - tea put in the packing material, lamination pouch, and sold in the State of Assam - HELD THAT:- Whenever a product is sold with a packing material VAT is collected on the sale price, which inferably includes the cost of packing material and the contents and the product is sold in a packing condition VAT is collected on the sale price; therefore, when the VAT is paid on such product, which includes the packing material and the packing material being the one of the specified goods as Entry 45, question of levy of entry tax on the packing material does not appear to be correct under the Entry Tax Act.
The impugned orders passed are quashed - Petition allowed.
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2015 (3) TMI 1437
Provisional attachment order - Money Laundering - scheduled offences - untainted source - proceeds of crime - Reasons to believe - burden of proving that property was untainted was on the Appellants - HELD THAT:- A person charged of committing a scheduled offence and having proceeds of crime is liable for attachment of his properties acquired from proceeds of crime and another person who is not charged of committing a scheduled offense but having the proceeds of crime is also liable for attachment of properties acquired from the proceeds of crime. The Appellant Jeevan Kumar belongs to both the categories. He was charged with scheduled offence and to have acquired from the proceeds of crime generated by him and also having the proceeds of crime of his brother which have been laundered by his brother, Amit Kumar, through the Appellant, Jeevan Kumar.
On his acquittal from the scheduled crime though it cannot be held that he generated proceeds of crime by committing schedule offence himself but in the peculiar facts and circumstances, Jeevan Kumar who had no source of his own income, earning or assets and who admitted in the statement recorded to have co-operated with his brother Amit Kumar who was involved in scheduled crime and his brother Amit Kumar had also admitted in the statement that Jeevan Kumar assisted him will be liable for attachment of properties acquired with the proceeds of crime generated by Amit Kumar who has been convicted in the scheduled offence.
The Statements under section 50 of the PMLA given by Amit Kumar, brother of the Appellant and Appellant, Jeevan Kumar were not retracted by them. Jeevan Kumar admitted that he had no source of income except from the business of kidney transplant, which was carried on by his brother. Though the criminal Court has acquitted the Appellant and its consequence will be only that he did not carry out the kidney transplant himself and did not earn on his own any amount; but he had also given the statement that he had no source of income and he cooperated with his brother Amit Kumar who is accused of scheduled offences - No relevant documents showing sufficient income from the export business of the wife has also been produced by the Appellant Jeevan Kumar. In these facts and circumstances, it is apparent that the proceeds of crime came from his brother Amit Kumar and he allegedly prima facie, laundered the proceeds of crime generated by his brother, Amit Kumar.
This Tribunal need not decide whether the amendment to the Act notified on 15.2.2013 are retrospective or not because under the unamended Act also the properties of all the appellants are liable to be attached and are not liable to be released on acquittal of the Jeevan Kumar as detailed hereinbefore. Assuming that the provision of amended Act carried out in the PMLA on 15.2.2013 are retrospective, then in view of amended section 8(5) of PMLA, mere acquittal of Shri Jeevan Kumar in the scheduled offence is not sufficient for releasing the properties and there should be acquittal in the case filed against the said appellants under section 3 & 4 of the PMLA also.
Appeal dismissed.
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2015 (3) TMI 1436
Refund of KVAT paid in excess in the past - HELD THAT:- The 1st respondent is directed to consider and pass orders on Ext. P2 representation within a period of two months from the date of receipt of a copy of this judgment, after hearing the petitioner. The 1st respondent shall compute the total refund amount, that is due to the petitioner together with upto-date interest, as contemplated under Section 89 of the KVAT Act. The said computation has to be done by the 1st respondent so as to determine the amount of refund, that is due to the petitioner, so that the said amount, after deduction of the amounts due from the petitioner pursuant to finalisation of the assessment for 2012-13, can be refunded to the petitioner, immediately thereafter.
The writ petition is disposed off.
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2015 (3) TMI 1435
Seeking quashing of FIR - case of Revenue is that only because the petitioners have discharged their civil liability by making payment of tax, they cannot be absolved from criminal liability - HELD THAT:- After careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that present case is squarely covered by the judgment of this Court in PRITPAL SINGH VERSUS STATE OF PUNJAB AND ANOTHER [2012 (3) TMI 576 - PUNJAB AND HARYANA HIGH COURT]. It is so said, because the similar controversy fell for consideration before this Court in Pritpal Singh's case and finally the matter was decided in favour of the petitioners therein, ordering quashing of FIR alongwith subsequent proceedings arising therefrom.
Accordingly, with a view to secure the ends of justice, present petition is allowed and FIR No. 227 dated 12.10.2012 under Section 420 IPC registered at Police Station Civil Lines Bathinda, alongwith subsequent proceedings arising therefrom, are ordered to be quashed, however, qua the petitioners only.
Petition allowed.
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2015 (3) TMI 1434
Dismissal of revision application - Sale deed executed in March 2000 and the notice issued by respondent No. 3 in October 2003 - revision applications are not entertained and are rejected because the said applications have been filed after prescribed period of limitation expired (i.e. after 90 days) - HELD THAT:- A provision conferring statutory right and thereby providing a remedy against the order by adjudicating authority, either in form of appeal or revision application, should be construed to make the remedy effective and meaningful and cannot be interpreted and enforced in a manner which will curtail the scope of remedy and may virtually render it ornamental or truncated than what the legislature actually provided for.
When the person is not even aware that some decision is taken and order is passed and / or when the person is not aware about the actual decision i.e. contents of the order, he cannot effectively and meaningfully avail the remedy provided under the Act. Unless the person has the knowledge about the order the provisions / remedy will be meaningless. Therefore, the said provision i.e. Section 53 of the Act and more particularly the expression “from the date of the order” must be construed to make the provision and the remedy effective and meaningful and not in a manner which would restrict the period of said remedy's availability i.e. the period for which the remedy would be effectively available to the concerned and affected person.
An order to become effective and operational, the order and decision should be informed to the concerned person and he should be aware about the decision of the authority and also about the direction. As observed by Hon’ble Apex Court in State of Punjab vs Amar Singh Harika [1966 (1) TMI 79 - SUPREME COURT] an authority may pass and sign an order and such order may be retained on file without communicating and forwarding it to the concerned person. The knowledge that an order is passed as well as knowledge about the actual decision and effect of the decision are imperative for calculating and enforcing the limitation prescribed (for filing application under Section 53 of the Act) by the Act.
The petitioner dispatched the revision applications to the competent authority on 10.9.2014 which was received (according to the claim by the respondents) in the office of the respondents on 15.9.2014 and the petitioner deposited 25% of adjudicated amount on 6.9.2014. Thus, the amount required to be deposited in light of clause-B of sub-section (1) of Section 15 was deposited by the petitioners even before the memo of applications were received in the office of revisional authority - In this view of the matter the period of limitation i.e. period of 90 days should have been calculated w.e.f. 19.6.2014.
The revisional authority has committed error in considering the revision applications filed by the petitioners as bared by limitation prescribed under the Act inasmuch as calculating the period on from 1st terminus to 2nd terminus i.e. from 19.6.2014 to 15.9.2014 it becomes clear that the revision applications are undisputedly filed before expiry of 90th day and that therefore the revision applications filed by the petitioners could not have been treated as barred by period of limitation prescribed under the Act and consequently the applications could not have been dismissed.
The impugned orders deserve to be and are accordingly hereby set aside and the matters are remitted to the revisional authority for considering the revision applications on merits - Petition disposed off.
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2015 (3) TMI 1433
Revisional jurisdiction - Re-appreciation of evidence revisional authority, to arrive at a conclusion which was different from that of the appellate authority - whether the revisional authority in exercise of its suo moto powers under Rule 23 could have re-appreciated the evidence and taken a different view in contradiction to the view taken by the appellate authority in the given facts and circumstances? - HELD THAT:- The revisional authority disagreed with the appellate authority merely for the reason that the negligence on the part of the petitioner was not required to be established by an independent witness as the attack on the camp and consequently the constables running for their lives, was accepted by the delinquent employee in his statement. The revisional authority was in agreement with appellate authority that the petitioner as well as the constable Sanjai Kumar Rai, though posted as Guards, were assigned the work of cooking food on the direction and order of the Commander. The required number of constables were not posted at the camp nor were the followers. In the aforesaid admitted position, the revisional authority, took a different view, that despite non availability of the followers and the assignment of cooking work, the petitioner being a constable should have been alert while performing his duties even while he was cooking the food. Therefore, the revisional authority opined that at the time of attack the petitioner was negligent in performance of his duties. The revisional authority, finally concluded, that considering the overall facts and circumstances and the conduct of the constables posted at the camp, the petitioner being a constable and deputed for the protection of the camp was negligent in performance of duty because at the time of the attack the petitioner and the other constables had escaped, consequently, the naxalites were successful in destroying the Government property and looting the arms and armaments.
The impugned order would reflect that the revisional authority had drawn inference on the same material and facts, but the revisional authority had taken distinct and different view from that of the appellate authority. The scope of "appeal" and "revision", discussed herein above, would not permit the revisional authority to re-appreciate the evidences to come to a different conclusion, save and except, when the revisional authority records a categorical finding regarding the legality and propriety of such order under revision. The revisional authority had exceeded his jurisdiction by taking upon himself the role of a second authority of appeal which is not permissible under the Rules.
The allegation against the petitioner is primarily of a general nature of not defending the camp at the time of the naxal attack. The appellate authority had noted the background in which the petitioner alongwith other constables acted at the relevant time. The guard strength was inadequate, seven guards against eleven, of which two guards, including the petitioner, were assigned the work of a cook. The Commander was not available when approximately fifty naxals attacked the camp. In these circumstances the first reaction of the guards was to take shelter to save their lives. The appellate authority in these circumstances and on considering the material, evidence and statements of the guards was of the view that the petitioner was wrongly held guilty by the Disciplinary Authority.
The revisional authority failed to record as to how the charges of misconduct was not identical to that of Sanjai Kumar Rai or the petitioner was foisted with more serious charges. In this background the revisional authority exceeded his jurisdiction in interfering with penalty proposed by the appellate authority.
The impugned order is not sustainable - petition allowed.
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2015 (3) TMI 1432
Money Laundering - Provisional attachment - illegal collection of public deposits with promise of return at high rates of interest, as well as money circulating activity without being enlisted as an NBFC in RBI and SEBI which was prohibited under the provisions of Prize Chits and Money Circulation Scheme (Banning) Act, 1978 - HELD THAT:- The elaborate statutory provisions of PMLA are well-equipped to deal with cases of the present nature and the adjudicating authority is amply imbued with powers under Section 8 of the PMLA to decide the validity of the provisional attachment. When the Petitioner's claims based in considerable proportion on issues of fact are capable of being decided by a competent statutory authority, there appears to me little reason for this Court to exercise its extraordinary constitutional writ jurisdiction at this stage.
While several show cause notices have been annexed as Annexure-36 series relating to the group companies and its officials, nothing has been brought on record to show that any such show notice was at all issued to the petitioner-company in violation of the interim order passed in its favour as aforesaid. Such statement by the Petitioner is thus misleading. In these circumstances, the challenge to the show cause notices dated 26.12.2014 issued to various other persons as contained in Annexure-36 series to the amendment petition at the instance of the Petitioner-Company is clearly completely misconceived.
This is not a fit case calling for interference in exercise of the discretionary and extraordinary powers of this Court in its writ jurisdiction - petition dismissed.
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2015 (3) TMI 1431
Plea of alibi - Murder - putting on ablaze by pouring kerosene - reliability of dying declaration - HELD THAT:- In the cross-examination he has categorically denied the suggestion that the injuries received by the deceased could have been sustained because of kerosene oil from the stove fell on her body due to the pinning of the stove and also by fall of a tin of kerosene oil on the floor. He has deposed without any equivocation that the burn injuries sustained by the deceased were not possible due to accidental burns - There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
Having stated about the medical evidence that has been brought on record and how such an evidence is to be valued, we think it apt to dwell upon the oral dying declaration which has been placed reliance upon by the trial Court as well as the High Court. As per the evidence of the brother, Satish, PW-1, he after reaching the place of occurrence found his sister ablaze and she had stated that her husband has poured kerosene on her and put her ablaze. There is material to show that the father, Shivcharan, PW-8, arrived after his son. The prosecution has explained about the delayed arrival of the father.
In the instant case, PW-1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the Appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.
When the trial court as well as the High Court have disbelieved the plea of alibi which is a concurrent finding of fact, there is no warrant to dislodge the same. The evidence that has been adduced by the accused to prove the plea of alibi is sketchy and in fact does not stand to reason. It is not a case where the accused has proven with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. The evidence adduced by the accused is not of such a quality that the Court would entertain a reasonable doubt. The burden on the accused is rather heavy and he is required to establish the plea of alibi with certitude. In the instant case, nothing has been brought on record that it was a physical impossibility of the presence of the accused to be at the scene of the offence by reason of his presence at another place. The plea can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
Appeal dismissed.
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2015 (3) TMI 1430
Removal of Chairperson/elected office bearer, by a motion of no confidence - no specific provision on removal by no confidence in the Act, Rules or even Bye-laws of a Cooperative Society - HELD THAT:- In PRATAP CHANDRA MEHTA & RAMESHWAR NEEKHRA VERSUS STATE BAR COUNCIL OF M.P. & ORS. [2011 (8) TMI 1228 - SUPREME COURT] the concept of democratic principles governing the democratic institutions have been discussed. In a democratic institution, confidence is the foundation on which the superstructure of democracy is built. The bedrock of democratic accountability rests on the confidence of the electorate. If the representative body does not have confidence in the office bearer whom they selected, democracy demands such officer to be removed in a democratic manner.
A cooperative society is registered on cooperative principles of democracy, equity, equality and solidarity. Democratic accountability, mutual trust, fairness, impartiality, unity or agreement of feeling among the delegates, cooperativeness, etc., are some of the cardinal dimensions of the cooperative principles. A body built on such principles cannot be led by a captain in whom the co-sailors have no confidence - If a person has been selected to an office through democratic process, and when that person looses the confidence of the representatives who selected him, those representatives should necessarily have a democratic right to remove such an office bearer in whom they do not have confidence, in case those institutions are viewed under the Constitution/statues as democratic institutions.
The cooperative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or Bye-laws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or Bye-laws - In case there is no express provision under the Act or Rules or Bye-laws for removal of an office bearer, such office bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office.
Now that this Court has declared the law regarding the democratic set up of a cooperative society and that it is permissible to remove an elected office bearer through motion of no confidence, and since in many States, the relevant statutes have not carried out the required statutory changes in terms of the constitutional mandate, we feel it just and necessary to lay down certain guidelines - In case the motion of no confidence is once defeated, a fresh motion shall not be introduced within another one year. A motion of no confidence shall be moved only in case there is a request from one-third of the elected members of the Board of Governors/Managing Committee of the cooperative society concerned. The motion of no confidence shall be carried in case the motion is supported by more than fifty per cent of the elected members present in the meeting.
Appeal dismissed.
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2015 (3) TMI 1429
Reduction of its preference share capital - Sections 100 to 105 of Companies Act, 1956 - HELD THAT:- Despite publication of notice, no objection has been received from any creditor or any member of the public. The petitioner company has filed the affidavit of Sh. Anil Saxena, Director of the petitioner company, on 17th March, 2015 submitting that neither the petitioner company nor its counsel have received any objection pursuant to citations published on 23rd January, 2015. Thus, there appears to be no legal impediment in allowing the present petition.
In view of the averments made in the petition and there being no objection from any creditor or any member of the public, the petition is hereby allowed. The resolution passed by the petitioner company in its Extra Ordinary General Meeting held on 22nd October, 2014 for reduction of its share capital is approved. The 'Form of Minutes' proposed to be registered under Section 103(1)(b), and annexed as Annexure –‘L’ to the petition, is also approved.
Petition allowed.
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2015 (3) TMI 1428
Suspension of petitioner set aside - whether the suspension of the Petitioner on the ground that he was involved in a Criminal case under the Prevention of Corruption Act can be set aside on the ground of prolonged suspension? - HELD THAT:- It cannot be gainsaid that an Employer has a right to take Disciplinary action against the Employee who is believed to have committed misconduct. An Employer, who has contemplated Disciplinary action against an Employee, may place him under suspension. After suspending an Employee, the matter rests there. As such, an Employee suffers and it results in unnecessary expenses to the Employer/State by way of payment of Subsistence Allowance in lieu of nothing.
Placing an Employee under suspension is the discretion of an Authority and where the directions is properly exercised for good and sufficient grounds, the order cannot be held bad in law merely because the reasons were not communicated.
It is true that the prosecution should not be allowed to become a persecution. However, when does the prosecution become persecution will certainly depend upon the facts and circumstances of a given case. It is the primordial duty of the Court concerned to dispose of a case concerning corruption by holding the trial on day to day basis as per Section 4(4) of the Prevention of Corruption Act, 1988. In fact, as per Section 4 of the Prevention of Corruption Act, a Special Judge appointed under the Act is to try offences specified in Section 3(1) of the Act. The word 'only' shows the exclusive jurisdiction of the Special Judge to try all offences specified in Section 3(1) of the Act.
In the decision of the Hon'ble Supreme Court in VICE CHANCELLOR JAMMU UNIVERSITY VERSUS DUSHIANT KUMAR RAMPAL [1977 (2) TMI 131 - SUPREME COURT], it is observed that: 'It is immaterial that evil effects flow from an Order of Suspension, as it causes real hardship and inconvenience to a civil servant due to stigma, attached to it. In fact, by placing an Employee under suspension without proper application of mind Government is a looser because it has to pay heavy amount by way of Subsistence Allowance and other payments without taking any service from the Employee.'
Vide the present Rules, namely, Tamil Nadu Civil Services (Discipline and Appeal) Rules, under Rule 17(e)(6), an Order of Suspension made or deemed to have been made under this rule may at any time be revoked by the Authority which made or is deemed to have made the Order or by any Authority to which that Authority is subordinate, thereby empowering the Competent Authority to take a decision as to the revocation of suspension at any time. The said rule framed in exercise of the powers conferred by the Proviso to Article 309 of the Constitution shall be exercised in the manner as contemplated. A reading of the said rule would unambiguously indicate that there cannot be any distinction between an Ordinary case and a Criminal case as to the involvement of the delinquent Employee.
The Constitution of India guarantees the right of public employment and the equality thereof guaranteed to every one under Article 16(1) shall be made available to every citizen, including the delinquent Employee. Such a right has to be enjoyed by the Government servant during the pleasure of the Governor of the State. Therefore, the Executive Order, taking away the rights conferred upon the citizens, without making necessary amendment to the Rules or bringing proper legislation, is bad in law and the review of the Order of Suspension by the authority without giving any distinction of the category of cases shall be made as a mandatory requirement by prescribing a period of review, otherwise, there will be a serious prejudice and continued apathy over the issue of keeping the Government servant for an unending period under suspension.
The Registry is directed to list these matters before the appropriate Bench for hearing in usual course.
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