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1999 (4) TMI 667
Issues:
Violation of section 9(1)(b) of the Foreign Exchange Regulation Act, 1973
Violation of section 14 of the Foreign Exchange Regulation Act, 1973
Analysis:
Violation of section 9(1)(b):
The appellant was alleged to have contravened section 9(1)(b) by receiving Rs. 50,000 in India on behalf of a non-resident, Krishan Lalwani. However, the tribunal found that the charge was misplaced as the appellant received the money for his own services and not on behalf of Lalwani. The tribunal highlighted that there is no prohibition for a resident Indian to receive money in India for services rendered. The tribunal concluded that the charge under this section was not sustainable based on the facts presented by the department.
Violation of section 14:
Regarding the alleged contravention of section 14, which involves owning or holding foreign exchange outside India, the tribunal noted that the department failed to charge the appellant under section 8(1) for acquiring foreign exchange in the USA. The tribunal emphasized that the charge under section 14 hinges on proving that the individual held foreign exchange abroad. The evidence presented, including Doshi's statement and seized documents, was deemed insufficient to prove that the appellant received foreign exchange equivalent to Rs. 2,50,000. The tribunal concluded that there was a lack of evidence to support the charge under section 14.
Conclusion:
The tribunal allowed the appeal, setting aside the penalties imposed on the appellant. It directed the respondents to refund the pre-deposited amount of Rs. 90,000 to the appellant within 45 days. The judgment highlighted the importance of substantial evidence in proving violations under the Foreign Exchange Regulation Act, emphasizing the need for clear and concrete proof to sustain charges.
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1999 (4) TMI 666
Issues:
1. Imposition of penalty and confiscation under the Foreign Exchange Regulation Act, 1973.
2. Appeal against Adjudication Order.
3. Challenge of factual and legal grounds.
4. Consideration of documentary evidence.
5. Re-adjudication and fresh consideration of the case.
Detailed Analysis:
1. The judgment involves an appeal against Adjudication Order imposing a penalty and confiscation under the Foreign Exchange Regulation Act, 1973. The appellant was penalized for contravention of specific provisions of the Act related to receiving and making payments without proper authorization. The appellant deposited a partial amount for waiver of penalty, leading to legal proceedings and subsequent appeal.
2. The appellant challenged the Adjudication Order on various grounds, including denial of adequate opportunity to prove the case, non-consideration of arguments, and lack of cross-examination of witnesses. The appellant also disputed the authenticity of documents and statements relied upon by the department. The High Court disposed of a related writ petition, allowing time for depositing the penalty amount.
3. The appellant's counsel requested an adjournment to file additional documents, which was partially granted by the Board. The appellant sought further hearings and cross-examination of witnesses to establish the genuineness of transactions. The Board observed deficiencies in the adjudication process, including the need for re-examination of evidence and consideration of appellant's arguments.
4. The judgment emphasized the importance of documentary evidence, including telephone records, handwritten notes, and statements, in determining the validity of the charges. The Board directed the Adjudicating Officer to evaluate the evidence thoroughly, considering the appellant's submissions and providing reasoned findings on the authenticity of documents and statements.
5. Ultimately, the Board set aside the impugned order and remanded the case for fresh adjudication, highlighting the need for a comprehensive re-examination of the evidence and legal arguments. The appellant was granted a refund of the deposited amount, while the confiscated funds remained under departmental seizure pending further consideration by the adjudicating authority.
In conclusion, the judgment underscores the procedural and evidentiary complexities involved in cases of foreign exchange regulation violations, emphasizing the importance of a fair and thorough adjudication process in upholding legal principles and safeguarding the rights of the parties involved.
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1999 (4) TMI 665
Issues:
- Imposition of penalty under section 9(1)(a) and (c) of the Foreign Exchange Regulation Act, 1973
- Dispensation of pre-deposit of penalty amount
- Violation of foreign exchange regulations due to loan transactions with non-residents
- Admittance of executing pronotes and acknowledgment of debt
- Contention regarding unintentional violation and lack of knowledge about non-resident status
- Consideration of plea for leniency based on age and health condition of the appellant
- Upholding of penalty by the Adjudicating Officer
Analysis:
The judgment by the Appellate Tribunal of the Foreign Exchange Regulation Appellate Board concerns an appeal against the imposition of penalties totaling Rs. 15,000 on the appellant for contravening section 9(1)(a) and (c) of the Foreign Exchange Regulation Act, 1973. The appellant had taken a loan from two non-resident partners and admitted to executing pronotes acknowledging the debt. The appeal involved the dispensation of the pre-deposit of the penalty amount, which was waived due to uncontested contentions. The tribunal proceeded to hear the appeal on merits, ultimately dismissing it.
The facts of the case revolve around the appellant borrowing a total of Rs. 1 lakh from two non-resident partners and subsequently repaying a portion of the amount. The appellant contended that he was unaware of the non-resident status of the partners and believed them to be Indian residents. Despite the appellant's argument of unintentional violation and lack of knowledge about the partners' status, the tribunal found that the acknowledgment of debt through pronotes and admission of receiving a foreign currency draft established a clear violation of the foreign exchange regulations.
The appellant's representative argued that the monetary transaction was natural, considering the partners' business activities in India, and requested leniency due to the appellant's age and health condition. However, the tribunal, after considering all circumstances, including the amount involved and the plea for leniency, upheld the penalty imposed by the Adjudicating Officer. The tribunal found that the penalty was not excessive, given the circumstances, and dismissed the appeal, directing the appellant to deposit the penalty amount within 30 days.
In conclusion, the judgment affirms the imposition of penalties on the appellant for violating foreign exchange regulations by engaging in loan transactions with non-residents, despite the appellant's contentions of unintentional violation and lack of knowledge about the partners' non-resident status. The tribunal upheld the penalty, considering all relevant factors, and dismissed the appeal, requiring the appellant to deposit the penalty amount within a specified timeframe.
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1999 (4) TMI 664
Issues:
Violation of provisions of section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973 - Imposition of penalty - Appeal against Adjudication Order.
Detailed Analysis:
1. Violation of Provisions:
The appeal was against the Adjudication Order imposing a penalty of Rs. 40,000 on the appellant for contravention of section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973. The appellant had made a pre-deposit of Rs. 10,000 as per an order by the FERA Board, and the balance amount was waived. The appeal was disposed of on merits after the deposit.
2. Allegations and Evidence:
The appellant was alleged to have received sums of money from an unknown local person on the instructions of a resident outside India, and made payments to unauthorized persons, contravening the Act. Various documents, including chits of paper seized during a search, Mahazars, and statements of the appellant, were relied upon as evidence.
3. Adjudication and Penalty Imposition:
The appellant did not file a written reply but was heard orally through counsel. The adjudicating authority found the appellant guilty based on the evidence and imposed a penalty of Rs. 40,000. The appellant's counsel sought leniency citing the appellant's health and financial situation.
4. Board's Analysis and Decision:
The Board noted the allegations of receiving and making payments, with specific details of transactions. While some evidence was accepted, the source of the money delivery remained unknown. The Board upheld the violation only regarding a specific amount of Rs. 1,05,000, reducing the penalty to Rs. 10,000, already deposited by the appellant.
5. Reduction of Penalty:
Considering the appellant's health and financial conditions, the Board reduced the penalty to the deposited amount of Rs. 10,000. The contravention of sections 9(1)(b) and 9(1)(d) was upheld only for the mentioned amount, and the respondent was directed to treat the deposited amount as payment of penalty.
This judgment highlights the process of adjudication in cases of foreign exchange regulation violations, the importance of evidence in proving contraventions, and the consideration of mitigating factors in determining penalties.
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1999 (4) TMI 663
Issues Involved:
1. Contravention of Section 18(2) and 18(3) of the Foreign Exchange Regulation Act, 1973.
2. Liability of directors under Section 68(1) of the Foreign Exchange Regulation Act, 1973.
3. Procedural fairness in the adjudication process.
Issue-wise Detailed Analysis:
1. Contravention of Section 18(2) and 18(3) of the Foreign Exchange Regulation Act, 1973:
The adjudication proceedings were initiated based on the allegation that the appellant-company had exported goods worth Rs. 5,27,58,945 to various countries but failed to realize the full export proceeds within the stipulated period of six months, thereby contravening Section 18(2) read with Section 18(3) of the Foreign Exchange Regulation Act, 1973. The department relied on the statement of outstanding GRIs as of 13-1-1995, the statements of the company's directors, and copies of 131 GR Forms. However, the learned counsel for the appellant argued that the adjudication proceedings were misconceived as the department had evidence of total realization of 93 GRIs within the time extended by the RBI and all remaining GRIs within five months prior to the issue of the SCN. The evidence of full realization was ignored, and the adjudicating officer proceeded based on the position as of 13-1-1995, disregarding the RBI's permission up to 31-3-1995 for 93 GRIs and pending consideration for the remaining GRIs.
2. Liability of directors under Section 68(1) of the Foreign Exchange Regulation Act, 1973:
The adjudication order imposed a penalty on the directors of the appellant-company, holding them liable under Section 68(1) of the Act. The counsel for the appellant contended that the penalties on the directors were unjustified as the entire outstanding amounts had been realized. The appellant had provided all required information and bank realization certificates, yet the adjudicating officer proceeded with undue haste and passed an ex parte order imposing penalties on both the company and its directors.
3. Procedural fairness in the adjudication process:
The appellant's counsel argued that the adjudication process was procedurally unfair. The SCN alleged violations in respect of 131 GRIs, requiring inspection of related documents, correspondence with foreign buyers, bankers, and the RBI. However, only 10 days were allowed for inspection and filing a reply, whereas normally 30 days are allowed. The request for extension of time was denied on flimsy grounds, and the adjudicating officer proceeded ex parte without proper notice. The adjudicating officer also falsely recorded that no reply to the SCN was forthcoming and that the appellants were seeking frequent adjournments, whereas the appellants had been cooperating and had only sought one adjournment.
Conclusion:
The tribunal found that the SCN and the proceedings were misconceived. The RBI had granted an extension of time up to 31-3-1995 for 93 GRIs, and the entire outstanding amount had been realized through proper banking channels. The adjudicating officer erred in framing the charge based on the position as of January 1995 and ignoring subsequent evidence of realization. The findings of contravention of Section 18(2) and 18(3) were set aside, and the invocation of Section 68 against the directors was also dismissed. The appeal was allowed, and the impugned order was set aside against all appellants.
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1999 (4) TMI 662
Issues Involved:
1. Residential status of the appellant.
2. Validity of the findings of the Adjudicating Officer.
3. Directions for repatriation of sale proceeds of the appellant's house in London.
4. Directions for repatriation of the amount of pound sterling 749.33.
Issue-wise Detailed Analysis:
1. Residential Status of the Appellant:
The appellant contested the requirement of pre-deposit, arguing that the findings regarding his residential status were unsustainable. He claimed he was a person resident outside India during the relevant period, which, if upheld, would absolve him of the charges under the SCNs. The adjudicating officer had noted that the appellant "returned to India in the year 1982" and frequently traveled for business, concluding that he was a person resident in India under sections 2(p)(ii)(b) and (c) of the Act. However, the Board found that the adjudicating officer failed to provide a categorical finding on when the appellant ceased to be a non-resident. The evidence showed the appellant had established business in London and continued his business activities abroad even after 1986-87. His stay in India was involuntary due to legal proceedings, and he maintained his business and properties in the UK. Thus, the Board concluded that the appellant never ceased to be a person resident outside India.
2. Validity of the Findings of the Adjudicating Officer:
The adjudicating officer's conclusion that the appellant was carrying on business in India was based on unreliable evidence. The business of International Stamps and Coins was a partnership involving the appellant's wife and another partner, Todywala. The appellant's role was managerial, not ownership. The Board noted that proper investigation into the partnership's affairs was lacking. The evidence did not support the finding that the appellant intended to stay in India indefinitely. The Board emphasized that the fulfillment of the second element of the definition under section 2(p)(ii) was a pre-condition for considering the third element. Since the appellant did not cease to be a person resident outside India, the charges could not be sustained.
3. Directions for Repatriation of Sale Proceeds of the Appellant's House in London:
The adjudicating officer directed the appellant to dispose of his house in London and repatriate the sale proceeds to India. The Board found this direction to be without jurisdiction, as section 63 of the Act did not empower the adjudicating authority to issue such directions. The power to issue such directions was specifically conferred on the Central Government under the now-omitted sub-section (3) of section 25. Therefore, the direction was set aside.
4. Directions for Repatriation of the Amount of Pound Sterling 749.33:
The adjudicating officer also directed the appellant to repatriate the amount of pound sterling 749.33. The Board set aside this direction as well, given the conclusion that the appellant was not guilty of the charges.
Conclusion:
The appeal was allowed, and the impugned order was set aside. The Board found that the appellant was not a person resident in India during the relevant period, invalidating the charges and the directions issued by the adjudicating officer.
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1999 (4) TMI 661
Issues:
Quashing of criminal case under Section 482, Cr. P.C. due to illegal charge framing procedure under Sections 244, 245, and 246 of the Criminal Procedure Code.
Analysis:
The petition sought the quashing of a criminal case under Section 482, Cr. P.C. due to an alleged illegal charge framing procedure under Sections 244, 245, and 246 of the Criminal Procedure Code. The case involved a private complaint against the petitioner for offenses under Section 420, I.P.C. and Section 138 of the Negotiable Instruments Act. The petitioner contended that the Magistrate's procedure in framing the charge was illegal, as no evidence was taken before framing the charge. The petitioner argued that since no evidence was taken under Section 244, he was deprived of the opportunity to seek discharge under Section 245. However, the court analyzed the relevant sections and found that the Magistrate's power to frame a charge is not dependent on the prior taking of evidence under Section 244. The court highlighted that the complainant's failure to produce evidence under Section 244 could result in the accused being discharged on the grounds of the case being groundless, as per Section 245. The court emphasized that Section 246 allows the Magistrate to frame a charge based on the grounds for presuming the accused committed an offense, even before taking evidence under Section 244.
The court examined the scheme outlined in Sections 244, 245, and 246, emphasizing that the Magistrate's duty is to hear the prosecution and take evidence produced, but not necessarily to take evidence under Section 244. The court clarified that the complainant's failure to produce evidence at the enquiry stage under Section 244 could lead to the accused being discharged if the case is deemed groundless. The court pointed out that Section 246 provides two stages for framing a charge in a warrant-case filed otherwise than on a Police report: after evidence taken under Section 244 discloses an offense or if the Magistrate finds grounds for presuming the accused committed an offense, even before taking evidence under Section 244. The court dismissed the petition, citing lack of merit based on the analysis of the relevant legal provisions and precedents cited during the proceedings.
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1999 (4) TMI 660
Issues Involved:
1. Entitlement of the plaintiff to demand partition of properties.
2. Determination of whether certain properties are joint family properties or self-acquisitions.
3. Evaluation of the income and expenditure of the family to establish the existence of a sufficient nucleus.
4. Determination of the presumption of joint family property.
5. Assessment of the contribution of family members to the family business.
6. Determination of the share of the plaintiff in the suit properties.
Detailed Analysis:
1. Entitlement of the plaintiff to demand partition of properties:
The plaintiff filed a suit for partition of the family properties, claiming a 5/16 share. The trial court passed a preliminary decree granting the plaintiff shares in some properties but excluded others, leading to this appeal.
2. Determination of whether certain properties are joint family properties or self-acquisitions:
The trial court found that Item No. 1 belonged to Janaki Ammal and was not a joint family property, thus entitling the plaintiff to a 1/5th share. Items 2, 7, and 8 were declared as joint family properties, granting the plaintiff a 5/16th share. The remaining items were declared self-acquisitions of Ramachandra Padayachi. The plaintiff failed to prove that the properties in the name of Ramachandra Padayachi or his wife were purchased with family funds.
3. Evaluation of the income and expenditure of the family to establish the existence of a sufficient nucleus:
The plaintiff did not provide evidence regarding the income derived from family properties or the expenditure of the family. The court emphasized that merely having a nucleus is insufficient; there must be proof of surplus income used for acquiring other properties. The plaintiff's evidence was inadequate in this regard.
4. Determination of the presumption of joint family property:
The court referred to several precedents establishing that there is no presumption that a joint family possesses joint property. The burden of proving that a property is joint family property lies on the party asserting it. The court observed that the plaintiff did not discharge this burden, as there was no evidence of sufficient surplus income from the family nucleus.
5. Assessment of the contribution of family members to the family business:
The plaintiff claimed that the family business, including paddy business, brick kiln business, and grocery shops, was managed by the three brothers. However, the court found inconsistencies in the plaintiff's statements and concluded that the businesses belonged solely to Ramachandra Padayachi. There was no evidence of financial or labor contributions from the plaintiff or Ganapathy Padayachi.
6. Determination of the share of the plaintiff in the suit properties:
The court confirmed the trial court's decision, granting the plaintiff a 5/16th share in Items 2, 7, and 8, and a 1/5th share in Item 1. The remaining properties were declared self-acquisitions of Ramachandra Padayachi. The court also addressed the issue of the 17th defendant's death, concluding that it did not affect the quantum of shares.
Conclusion:
The appeal was dismissed, affirming the trial court's judgment. The court emphasized the need for concrete evidence to prove the existence of a sufficient family nucleus and contributions to the family business. The plaintiff failed to establish his claims, leading to the dismissal of the suit. Each party was directed to bear their respective costs.
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1999 (4) TMI 659
Issues Involved:
1. Whether the closure of the account falls within the purview of Section 138 of the Negotiable Instruments Act, 1881.
2. Interpretation of Section 138 in the context of penal provisions.
3. Legislative intent and purpose behind Section 138.
Summary:
Issue 1: Whether the closure of the account falls within the purview of Section 138 of the Negotiable Instruments Act, 1881.
The Appellants argued that the return of cheques with the endorsement "account closed" does not fall under Section 138 of the Negotiable Instruments Act, 1881, which envisages only two situations: (i) insufficient funds, or (ii) exceeding the amount arranged to be paid from that account. The Court, however, held that the closure of the account implies that there were no funds in the account at the relevant time, thus falling within the purview of Section 138. The expression "the amount of money standing to the credit of that account is insufficient to honour the cheque" includes the scenario where the account is closed, as it means there was no amount in the credit of "that account" when the cheque was presented.
Issue 2: Interpretation of Section 138 in the context of penal provisions.
The Court emphasized that even though Section 138 is a penal provision, it should not be interpreted in a manner that defeats its purpose. The Court referred to the principle that penal statutes should be construed to suppress the mischief and advance the remedy. The Court cited various precedents, including Kanwar Singh v. Delhi Administration and Swantraj v. State of Maharashtra, to support the view that the interpretation should not allow dishonest persons to escape penal consequences by closing their accounts before cheque presentation.
Issue 3: Legislative intent and purpose behind Section 138.
The Court highlighted that the legislative intent behind Section 138 is to promote the efficacy of banking operations and ensure credibility in commercial transactions through cheques. The Court referred to the decision in Modi Cements Ltd. v. Kuchil Kumar Nandi, which held that Section 138 aims to inculcate faith in banking operations and prevent the misuse of cheques. The Court concluded that interpreting Section 138 to include the closure of accounts within its ambit aligns with the legislative purpose of maintaining the credibility of cheques in commercial transactions.
Conclusion:
The Supreme Court dismissed the appeal, holding that the return of a cheque with the endorsement "account closed" falls within the purview of Section 138 of the Negotiable Instruments Act, 1881. The Court emphasized that the interpretation should align with the legislative intent to suppress the mischief and advance the remedy, thereby ensuring the efficacy and credibility of banking operations in commercial transactions.
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1999 (4) TMI 658
Issues Involved:
1. Whether the dues on account of Provident Fund, Compulsory Deposit Scheme, Life Insurance, arrears of pay, Death-cum-retirement Gratuity, etc., fall within the ambit of 'debts and securities' under Section 381 of the Indian Succession Act.
2. Whether the Civil Judge (Junior Division), Basti had jurisdiction to entertain the application for the issue of a succession certificate.
3. Whether the respondent was the widow of the deceased and thus entitled to the succession certificate.
Issue-wise Detailed Analysis:
1. Dues as 'Debts and Securities':
The petitioner argued that the dues in question do not fall within the ambit of 'debts and securities' as per Section 381 of the Indian Succession Act. The petitioner relied on various judgments, including the Calcutta High Court's decision in Assam Bengal Railway Co., Ltd. v. Atul Chandra Sen, which held that Provident Fund is not a debt or security. However, the court found that the Provident Funds Act and the Insurance Act envisage that a succession certificate may be issued by the court for the amounts due on Provident Fund and insurance policies. The court further elaborated that the amounts due to the legal heirs of a deceased employee, such as Provident Fund, Compulsory Deposit Scheme, Life Insurance, arrears of pay, Death-cum-retirement Gratuity, etc., are indeed 'debts' as they are payable by the employer upon the death of the employee. Therefore, the court rejected the petitioner's argument and held that these dues fall within the meaning of 'debts' under Section 381 of the Act.
2. Jurisdiction of Civil Judge (Junior Division), Basti:
The petitioner contended that the Civil Judge (Junior Division), Basti, lacked jurisdiction to entertain the application for the succession certificate, as the deceased was residing in Gonda at the time of his death. According to Section 371 of the Act, the jurisdiction lies with the District Judge where the deceased ordinarily resided at the time of death. The court noted that the petitioner had not raised the issue of jurisdiction at the trial court or in the grounds of appeal. The court emphasized that the question of territorial jurisdiction is a mixed question of law and fact, requiring specific pleas and supporting evidence. Since the petitioner failed to raise this issue earlier, the court found no merit in the jurisdictional argument and upheld the jurisdiction of the Civil Judge (Junior Division), Basti.
3. Status of Respondent as Widow:
The petitioner challenged the respondent's status as the widow of the deceased, arguing that she was married to another person. However, the court found overwhelming evidence supporting the respondent's claim as the widow of the deceased. The trial court and the appellate court both recorded findings that the respondent had lived with the deceased for about 40 years and was acknowledged by the deceased as his wife in official documents. The court dismissed the petitioner's reliance on discrepancies in the family register, stating that the register's entries were not sufficient to displace the deceased's admission and other corroborative evidence. The court concluded that the respondent was indeed the widow of the deceased and entitled to the succession certificate.
Conclusion:
The High Court dismissed the petition, finding no merit in any of the grounds raised by the petitioner. The court affirmed that the dues in question fall within the ambit of 'debts,' the Civil Judge (Junior Division), Basti had jurisdiction, and the respondent was the widow of the deceased. The succession certificate issued in favor of the respondent was upheld.
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1999 (4) TMI 657
Issues Involved:
1. Non-compliance with Section 81(3) of the Representation of People Act, 1951.
2. Alleged non-supply of a true copy of Annexure XV.
Issue-Wise Detailed Analysis:
1. Non-compliance with Section 81(3) of the Representation of People Act, 1951:
The appellant contested the election petition on the grounds that the copy of the affidavit served on him was not a "true copy" as required by Section 81(3) of the Act. The appellant argued that the copy of the affidavit did not include the name, seal, and stamp of the Notary, which were present on the original affidavit filed with the Election Petition. This omission, according to the appellant, rendered the copy non-compliant with Section 81(3) and warranted dismissal of the election petition under Section 86(1) of the Act.
The Supreme Court referred to the case of Dr. Shipra v. Shanti Lal Khoiwal, where it was held that the absence of notarial endorsement on the affidavit served on the respondent was a fatal defect. However, the Court distinguished the present case from Dr. Shipra's case, noting that in Dr. Shipra's case, the affidavit served did not show that it was sworn or affirmed, rendering it no affidavit at all. In contrast, the affidavit served on the appellant in the present case did contain the endorsement of attestation by the Notary, albeit without the name and seal.
The Court reiterated the principle from Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, which held that the word "copy" in Section 81(3) does not mean an exact copy but one that is substantially true and does not mislead a reasonable person. The Court found that the omission of the Notary's name and seal in the copy of the affidavit served on the appellant was not a vital defect that could mislead or prejudice the appellant in formulating his defense. Thus, there was substantial compliance with Section 81(3), and the election petition was not liable to be dismissed on this ground.
2. Alleged non-supply of a true copy of Annexure XV:
The appellant also raised an objection regarding the non-supply of a true copy of Annexure XV, a newspaper report, which was part of the election petition. The High Court compared the copy of Annexure XV served on the appellant with the original filed with the Election Petition and found them to be identical. The Supreme Court independently verified this finding and confirmed that there was no variation between the two documents.
The Court noted that the appellant did not press this challenge after the comparison, reserving the right to raise other points concerning Annexure XV at the trial. Therefore, the objection regarding Annexure XV was not based on any factual discrepancy, and the High Court's finding on this issue was upheld.
Conclusion:
The Supreme Court concluded that the election petition did not suffer from any defect that could attract the provisions of Section 86(1) of the Act. The appeal was dismissed, and the Court requested the High Court to expeditiously dispose of the election petition pending since 1996.
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1999 (4) TMI 656
Issues Involved:
1. Whether the Special Court constituted under Section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is empowered to take cognizance of and try offences under the Indian Penal Code (IPC).
2. Whether the High Court has the power to vest non-territorial jurisdiction upon the Special Court through its circular orders.
3. The procedure to be adopted for cases pending trial and charge sheets involving both the Act and IPC offences.
4. The procedure for the Special Court to take cognizance of offences.
5. The applicability of Section 3(2)(v) of the Act in cases of offences punishable with death or life imprisonment.
6. The applicability of Section 3(2)(v) when the offender is unaware that the victim belongs to a Scheduled Caste or Scheduled Tribe.
7. The jurisdiction of the Special Court to try an offender who is a member of a Scheduled Caste or Scheduled Tribe along with other offenders who are not members of the Scheduled Caste or Scheduled Tribe.
Detailed Analysis:
1. Cognizance and Jurisdiction of Special Court:
The Special Court under Section 14 of the Act cannot take direct cognizance of offences under the IPC. The Court must follow the committal procedure as laid down under the Code of Criminal Procedure (Cr.P.C.). The Court of Session, even when designated as a Special Court, remains a Court of Session and cannot assume original jurisdiction without a committal order from a Magistrate.
2. High Court's Power to Vest Jurisdiction:
The High Court's circular orders cannot vest non-territorial jurisdiction upon the Special Court. The circulars issued by the High Court, including the one dated 12-2-1992, do not override the statutory requirement of committal under Section 193 of the Cr.P.C. The circulars cannot confer powers on the Special Court that are not provided by the Act or the Cr.P.C.
3. Procedure for Pending Cases:
For cases involving both the Act and IPC offences, the correct procedure is to file the charge sheets before the Magistrate, who will then commit the case to the Special Court. The Special Court can only take cognizance after such committal. The pending charge sheets and cases transferred to the Special Court without following this procedure must be returned to the Magistrate for proper committal.
4. Cognizance of Offences by Special Court:
The Special Court cannot take direct cognizance of offences under the Act. The procedure requires that the charge sheets be filed before the Magistrate, who will then commit the case to the Special Court. This ensures compliance with Section 193 of the Cr.P.C., which bars the Court of Session from taking cognizance of any offence as a Court of original jurisdiction unless committed by a Magistrate.
5. Applicability of Section 3(2)(v) for Severe Offences:
Section 3(2)(v) of the Act, which provides for enhanced punishment, does not apply to offences under Section 302 IPC (punishable with death or life imprisonment). The provision is intended for offences punishable with imprisonment for a term of ten years or more, but not for those with higher prescribed punishments like life imprisonment or death.
6. Knowledge of Victim's Caste:
Section 3(2)(v) is not attracted if the offence is committed without the knowledge that the victim belongs to a Scheduled Caste or Scheduled Tribe. The motive and intention at the time of the offence are crucial. If the offence was not committed on the ground of the victim's caste, the enhanced punishment provision does not apply.
7. Jurisdiction Over SC/ST Offenders:
The Special Court has jurisdiction to try an offender who is a member of a Scheduled Caste or Scheduled Tribe along with other offenders who are not members of such castes, provided the offences are committed in the course of the same transaction. This is in line with Section 223 of the Cr.P.C., which allows for joint trials of offences committed in the same transaction.
Conclusion:
The judgment clarifies that the Special Court under the Act cannot take direct cognizance of offences without committal by a Magistrate. It also addresses the procedural requirements for handling cases involving both the Act and IPC offences, the applicability of enhanced punishment provisions, and the jurisdiction over offenders from Scheduled Castes or Scheduled Tribes. The decision underscores the need for legislative amendments to address procedural lacunae and ensure effective implementation of the Act.
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1999 (4) TMI 655
The Appellate Tribunal CEGAT, Mumbai allowed the appeal, setting aside the order that included the cost of patterns in the assessable value of castings. The Tribunal referenced a previous decision and a Ministry of Finance circular, stating that the cost of patterns should be spread over the entire quantity manufactured. The duty payable needs to be recalculated accordingly.
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1999 (4) TMI 654
Issues: Bail application rejection under Sections 323, 294, 506-II of IPC and Section 3/4 of Dowry Prohibition Act.
Analysis:
The judgment by R.S. Garg, J. of the Madhya Pradesh High Court deals with a bail application rejection under Sections 323, 294, 506-II of the Indian Penal Code (IPC) and Section 3/4 of the Dowry Prohibition Act. The petitioner sought bail after being in jail following rejection of previous bail applications. The court analyzed the provisions of Section 506 of the IPC, distinguishing between 506-A and 506-B, emphasizing the need for specific ingredients to establish criminal intimidation. The judgment highlighted the importance of proving the threat with intent to cause alarm and the severity of the threat in determining bail eligibility.
The court scrutinized the facts of the case, focusing on the first information report (FIR) to assess the presence of essential elements required for Section 506 II of the IPC. It emphasized the necessity of demonstrating a genuine threat causing alarm to the complainant, rather than an empty threat or a mere attempt to extract dowry. The judgment underscored the responsibility of judicial officers to discern when bail should be granted, especially in cases involving serious offenses like criminal intimidation.
Furthermore, the judgment critiqued the lower judiciary's approach to bail applications, urging judges to consider each day of detention as a relevant factor and to avoid blanket rejections based on prior decisions. It emphasized the need for a thorough evaluation of the allegations, the nature of evidence, and the possibility of a prima facie case before denying bail. The judgment cautioned against arbitrary rejections and highlighted the discretionary power of the court in granting bail, stressing the importance of protecting personal liberty unless strong evidence dictates otherwise.
In conclusion, the court allowed the bail application, ordering the immediate release of the petitioner upon furnishing a personal bond. The judgment directed the dissemination of the order to the relevant judicial authorities for a better understanding of the legal principles involved. The decision underscored the significance of judicial discretion in bail matters and the need for a nuanced assessment of each case to uphold the principles of justice and personal liberty.
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1999 (4) TMI 653
Issues:
Whether stamp duty under Article 36 of the Bombay Stamp Act, 1958 is payable for an agreement of lease dated 13-6-1994 executed by the respondents in favor of the appellants.
Analysis:
The judgment revolves around the interpretation of an agreement of lease dated 13-6-1994 to determine if stamp duty under Article 36 of the Bombay Stamp Act, 1958 is applicable. The key issue is whether the agreement creates an immediate and present demise, as required by Explanation III of Article 36. The document is analyzed to ascertain if it conveys an interest in the land to the appellants. The agreement stipulates that the licensees have the authority to enter the land for erecting buildings but clarifies that it does not demise any interest in the land to the appellants until the lease is executed and registered.
The judgment delves into the specific clauses of the agreement to establish the nature of the transaction. Clause 7 outlines the process for granting a lease upon compliance with certain conditions, indicating the intention of the parties to execute a lease in the future. It is emphasized that until the lease is executed, the status of the appellants remains that of a licensee. The document's language and provisions are scrutinized to determine if it confers a legal interest in the land to the appellants or if it merely grants a right to use the property for a specific purpose.
The court refers to legal precedents to distinguish between a lease and a license, highlighting the Transfer of Property Act's definition of a lease as a transfer of a right to enjoy the property. The judgment underscores that a license grants only a right to use the property without transferring any interest in the land. The agreement in question is analyzed in light of these legal principles to ascertain whether it amounts to a lease or a license based on the nature of the rights conferred to the appellants.
Ultimately, the court concludes that the agreement does not amount to a lease as it does not convey any legal interest in the land to the licensees. Clause 2 expressly states that the agreement does not constitute a demise in law, precluding the applicability of Article 36 of the Bombay Stamp Act. The judgment allows the appeal, setting aside the High Court's decision based on the interpretation of the agreement and the legal distinction between a lease and a license.
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1999 (4) TMI 652
Issues:
Appeal against Collector of Central Excise (Appeals) order for quashing and other reliefs.
Analysis:
The appellant, engaged in manufacturing rubber products, imported synthetic rubber and availed Modvat credit under Rule 57A of the Central Excise Rules. Due to the loss of the original bill of entry during transportation, the appellant reconstructed a certified copy and took credit. The department issued a show cause notice, denying the credit based on Circular No. 25/92-CX-4, stating Modvat credit cannot be taken on a certified copy of the bill of entry. The appellant argued that loss of the bill of entry is a technical defect and cited precedents where Modvat credit was allowed based on certified copies. The respondent contended that Rule 57G(2) requires the original triplicate bill of entry and cited cases where Modvat credit was disallowed based on certified copies. The main issue was whether there were sufficient grounds to allow the appeal.
The Tribunal analyzed the provisions of Rule 57G, 57A, and 57I of the Central Excise Rules. It noted that both lower authorities relied on Circular No. 25/92-CX-4 and Rule 57G(4), emphasizing the necessity of the original document for claiming Modvat credit. The Collector (Appeals) also pointed out Rule 57G(2) which prescribes duty paying documents accompanying goods. Despite the original bill of entry accompanying the goods but not reaching the appellant's factory, the appellant had a certified third copy of the bill of entry, attested by Customs Authority, showing duty payment details. The Tribunal referred to precedents where Modvat credit was allowed based on certified copies and physical receipt of duty paid goods. It distinguished cases where Modvat credit was disallowed due to lack of certified copies or supplier certificates. The Tribunal concluded that the appellant had sufficient grounds to appeal, allowing the appeal and setting aside the impugned order.
In summary, the Tribunal found in favor of the appellant, allowing the appeal against the Collector of Central Excise (Appeals) order. The decision was based on the appellant's establishment of duty payment on imported goods through a certified copy of the bill of entry, despite the loss of the original document during transportation. Precedents supporting the acceptance of certified copies for claiming Modvat credit were crucial in the Tribunal's decision, emphasizing the importance of physical receipt of duty paid goods and adherence to relevant provisions of the Central Excise Rules.
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1999 (4) TMI 651
Supreme Court of India dismissed the appeal in the case. Citation: 1999 (4) TMI 651 - SC. Judges: Mrs. Sujata V. Manohar and Mr. R.P. Sethi.
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1999 (4) TMI 650
Issues Involved:
1. Validity of the Court Receiver's appointment and possession.
2. Applicability of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985.
3. Determination of custodia legis status.
4. Jurisdiction of the Court post-B.I.F.R. registration.
Issue-wise Detailed Analysis:
1. Validity of the Court Receiver's Appointment and Possession:
The plaintiffs contended that the Court Receiver, High Court, Bombay, had been appointed as the Receiver of all the immovable and movable properties of Defendant No. 1 by an order dated 11th December 1998. The plaintiffs argued that the property vested in the Receiver once the appointment was made. However, the defendants argued that the property would only be custodia legis once the Receiver took actual possession, which had not occurred in this case. The Court concluded that mere appointment does not immediately vest the property in the Receiver; possession must be taken to establish custodia legis.
2. Applicability of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985:
The defendants argued that once proceedings are registered under the Sick Industrial Companies (Special Provisions) Act, 1985, all further proceedings stand suspended, and the Court would lack jurisdiction to pass any order. The Court referred to the Supreme Court's interpretation in Real Value Appliances Ltd. v. Canara Bank, which clarified that once a reference is registered, the prohibitions in Section 22 immediately come into play, staying all proceedings against the company's assets. The Court agreed that the suit by the plaintiffs for recovery of monies and other reliefs was covered by Section 22, thereby staying all proceedings unless consent was obtained from the B.I.F.R. or the Appellate Authority.
3. Determination of Custodia Legis Status:
The Court examined various judgments to determine when a property is considered custodia legis. It concluded that mere appointment of a Receiver does not vest the property in him; actual possession must be taken. The Court cited multiple cases, including Everest Coal Company Pvt. Ltd. v. State of Bihar, which emphasized that the property comes under the Court's custody only when the Receiver takes possession. The Court held that until the Receiver takes possession, third parties can proceed against the property, and the defendants are prohibited from dealing with it.
4. Jurisdiction of the Court Post-B.I.F.R. Registration:
The Court emphasized that once proceedings are registered under the Sick Industrial Companies (Special Provisions) Act, 1985, the Court's jurisdiction to continue proceedings is ousted. The Court highlighted that the plaintiffs must seek permission from the B.I.F.R. to proceed with any coercive steps, such as taking possession of the property by force. The Court clarified that even if the property is considered custodia legis, the Receiver must take possession to establish this status.
Conclusion:
The Court dismissed the plaintiffs' application, finding no merit in their arguments. The Court reiterated that the plaintiffs must seek permission from the B.I.F.R. to proceed with any further steps. The suit was dismissed accordingly.
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1999 (4) TMI 649
Issues Involved:
1. Existence of alternative remedy.
2. Lack of territorial jurisdiction.
3. Violation of principles of natural justice.
4. Interim order of injunction by the Monopolies and Restrictive Trade Practices Commission.
5. Discretion exercised by the trial judge.
Detailed Analysis:
1. Existence of Alternative Remedy:
The court examined whether the writ application should be dismissed due to the existence of an alternative remedy. The appellant argued that despite the alternative remedy under Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969, the writ application should be considered because the principles of natural justice were allegedly violated. The court acknowledged that judicial review is not inhibited by the existence of an alternative remedy but noted that it is a self-imposed restriction by the High Courts. The court emphasized that the nature of the forum (Supreme Court) plays a crucial role, as it can provide a more efficacious, speedy, and cheaper remedy compared to a writ application. The court concluded that the existence of an alternative remedy justified the refusal to entertain the writ application.
2. Lack of Territorial Jurisdiction:
The appellant contended that the court should have jurisdiction since part of the cause of action arose within its jurisdiction. However, the court did not delve deeply into this issue, as the primary focus was on the existence of an alternative remedy. The trial judge's lack of detailed reasoning on this point was noted, but the court found it unnecessary to address the territorial jurisdiction question due to the resolution of other issues.
3. Violation of Principles of Natural Justice:
The appellant claimed that the principles of natural justice were violated when the Commission refused an adjournment despite new facts being introduced in a supplementary affidavit. The court scrutinized the Commission's order and found that the appellant had been given an opportunity to address the new facts, and the arguments were heard before reserving the order. The court concluded that the principles of natural justice were not violated, as the appellant was not denied an opportunity to present their case. The court also highlighted that even if there was a violation, the appellant failed to show any prejudice caused by such violation, which is a necessary condition for invoking the principles of natural justice.
4. Interim Order of Injunction by the Monopolies and Restrictive Trade Practices Commission:
The appellant challenged the interim order of injunction granted by the Commission, arguing that it would lead to the failure of their entire scheme. The court noted that the Commission's power to pass such orders is appealable under Section 55 of the Act. The court emphasized that the Supreme Court has the jurisdiction to address the merits of the dispute, including the interim order, making the writ application unnecessary.
5. Discretion Exercised by the Trial Judge:
The court evaluated whether the trial judge's discretion in dismissing the writ application was exercised improperly or perversely. The court found that the trial judge's discretion was sound and not exercised contrary to any legal principles. The court reiterated that an appellate court should not interfere with the trial judge's discretion unless it is shown to be exercised wrongly or perversely. The court concluded that the trial judge's discretion was appropriately exercised, and no interference was warranted.
Conclusion:
The appeal was dismissed on the grounds that the existence of an alternative remedy, the lack of violation of natural justice, and the appropriate exercise of discretion by the trial judge justified the dismissal of the writ application. The court emphasized the importance of utilizing the alternative remedy provided under the Monopolies and Restrictive Trade Practices Act, 1969, and upheld the trial judge's decision. The appeal was dismissed without any order as to costs.
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1999 (4) TMI 648
Issues:
1. Appeal against the judgment and order passed by the High Court of Kerala
2. Dispute between a mining contractor and Indian Rare Earths Ltd.
3. Arbitration award challenged on grounds of legal misconduct by the arbitrator
4. Interpretation of the Arbitration Act and relevant case laws
5. Examination of the arbitrator's findings on various issues raised in the case
Analysis:
1. The appeal was filed against the High Court's judgment regarding a dispute between a mining contractor and Indian Rare Earths Ltd. The contractor failed to supply the agreed quantity of raw sand, leading to arbitration. The arbitrator awarded a sum in favor of the contractor, which was challenged in the High Court.
2. The High Court set aside the award, citing legal misconduct by the arbitrator. The contractor claimed under various heads, while the respondent filed a counterclaim. The arbitrator framed 51 issues and awarded a specific amount. The High Court upheld only the refund of earnest money, leading to the current appeal.
3. The Supreme Court referred to relevant case laws to analyze legal misconduct by the arbitrator. It was established that the arbitrator's jurisdiction is derived from the contract, and the award can be set aside if the arbitrator exceeds this jurisdiction or if there is misconduct apparent on the face of the award.
4. The arbitrator's findings on issues related to mining area availability, loss suffered, and escalation were examined. The Court noted that the arbitrator's award exceeded the scope of the agreement between the parties, especially in relation to Clause (c) of the tender notice. The award under Claim No. 3 was deemed beyond the agreement's scope and unsustainable.
5. Additionally, the award under Claim No. 9, regarding escalation, was found to be beyond the agreement's scope and contrary to the arbitrator's own findings. Consequently, the Court held that the arbitrator had misconducted himself in the proceedings, leading to the award's setting aside under Section 30 of the Arbitration Act. The appeal was dismissed, with each party bearing their own costs.
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