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2009 (5) TMI 1029
1. ISSUES PRESENTED and CONSIDERED The judgment primarily addresses the following legal issues: - Whether the petitioner (original accused No. 4) should be discharged from the charges under Sections 307 and 120B of the Indian Penal Code (I.P.C.) and Section 135 of the Bombay Police Act (B.P. Act).
- Whether the trial court erred in rejecting the discharge application under Section 227 of the Code of Criminal Procedure (Cr.P.C.).
- Whether the imposition of special costs on the accused by the trial court was justified.
- Whether the trial court's remarks against the defense counsel were appropriate and should be expunged.
- Whether the case should be transferred to another court for trial.
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Discharge of the Petitioner - Relevant legal framework and precedents: The application for discharge is governed by Section 227 of the Cr.P.C., which allows for discharge if there is no sufficient ground for proceeding against the accused. The court must consider whether a prima facie case exists, as established in Dilawar Balu Kurane v. State of Maharashtra and State of Maharashtra v. Som Nath Thapa.
- Court's interpretation and reasoning: The court examined the evidence collected during the investigation, including witness statements and material evidence, to determine if a prima facie case was established against the petitioner.
- Key evidence and findings: The evidence included witness statements, the identification parade, and material evidence like the motorcycle and knives. The petitioner was implicated in a conspiracy to murder due to a land dispute.
- Application of law to facts: The court found that the evidence collected, when viewed in totality, was sufficient to presume the petitioner's involvement in the alleged conspiracy and attempt to murder.
- Treatment of competing arguments: The defense argued that the evidence was insufficient and contradictory, while the prosecution maintained that a prima facie case existed. The court sided with the prosecution, emphasizing the limited scope of inquiry at the discharge stage.
- Conclusions: The court concluded that there was sufficient ground to proceed with the trial and rejected the discharge application.
Issue 2: Imposition of Special Costs - Relevant legal framework: The imposition of costs is generally within the discretion of the court but should be justified by the circumstances.
- Court's reasoning: The trial court imposed costs on the accused for allegedly delaying the proceedings, which the High Court found unjustified as the accused were exercising their legal right to seek discharge.
- Conclusions: The High Court set aside the order imposing costs, finding it unwarranted.
Issue 3: Remarks Against Defense Counsel - Relevant legal framework: Judicial remarks should be fair and not prejudicial to the parties or their counsel.
- Court's reasoning: The High Court found the trial court's remarks against the defense counsel inappropriate and prejudicial.
- Conclusions: The High Court expunged the remarks from the record.
Issue 4: Transfer of the Case - Relevant legal framework: The transfer of cases is considered to ensure a fair trial and to avoid any bias or prejudice.
- Court's reasoning: Given the trial court's detailed evaluation of evidence at the discharge stage, the High Court deemed it appropriate to transfer the case to another court for trial.
- Conclusions: The High Court ordered the transfer of the case to another court for trial.
3. SIGNIFICANT HOLDINGS - Preservation of crucial legal reasoning: "If on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists."
- Core principles established: The court reiterated the principle that at the stage of framing charges, the evidence should be viewed in favor of the prosecution, and the probative value should not be assessed in depth.
- Final determinations on each issue: The petitioner's application for discharge was rejected, the imposition of costs was set aside, the remarks against the defense counsel were expunged, and the case was ordered to be transferred for trial.
The judgment underscores the importance of evaluating evidence at the discharge stage with a view to determining whether a prima facie case exists, without delving into a detailed analysis of the evidence. It also highlights the need for judicial restraint in making remarks against counsel and the necessity of ensuring a fair trial by transferring cases when appropriate.
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2009 (5) TMI 1028
Issues:
Quashing of FIR, charge sheet, and proceedings under Section 39 of the Electricity Act and Section 379 IPC based on lack of evidence and improper prosecution.
Analysis:
The petitioner sought the quashing of FIR, charge sheet, and subsequent proceedings, arguing that no offense was made out. The FIR was related to theft of electric energy, allegedly involving consumers and employees of the Haryana State Electricity Board. The Additional Sessions Judge had previously discharged 54 persons due to lack of evidence. The State of Haryana's challenge to this discharge was dismissed, emphasizing the need for concrete evidence of theft of electricity through tampering with meters. The court highlighted that the mere control over meters by the accused was insufficient to establish theft. The lack of evidence led to the dismissal of the challenge.
The petitioner further sought quashing under Section 482 Cr.P.C, citing a previous judgment regarding the theft of electricity. The court reiterated the need for a complaint under Section 151 of the Electricity Act for theft of electricity under Section 135. It emphasized that the special law of the Electricity Act would prevail over general laws like Section 379 IPC. Launching prosecution under IPC based on unauthorized complaints was deemed an abuse of process. The court referred to a previous case to support its decision, highlighting the need for specialized knowledge in electricity matters to establish theft.
Applying the principles from previous judgments, the court concluded that no complaint under Section 151 of the Electricity Act was filed for theft of electricity, rendering the charges invalid. The court emphasized that the special provisions of the Electricity Act superseded general laws like IPC. Prosecution based on unauthorized complaints was considered illegal. The court ordered the quashing of the FIR, charge sheet, and subsequent proceedings, citing an abuse of the court process.
In conclusion, the court allowed the petition, quashing the FIR, charge sheet, and all subsequent proceedings. It clarified that this decision did not grant immunity to the petitioners for any established misuse of electricity. The rights of the Electricity Board in pending recovery proceedings against the petitioner were preserved, ensuring that the judgment did not prejudice the Board's rights in pursuing any liabilities arising from electricity misuse.
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2009 (5) TMI 1027
Issues Involved:
1. Revival of the company post-winding up order.
2. Validity of the cancellation of industrial sheds allotment.
3. Settlement of debts with creditors, including secured, unsecured, and preferential creditors.
4. Legal implications of actions taken post-winding up order without court permission.
5. Equitable treatment of creditors and objections to the revival proposal.
Issue-wise Detailed Analysis:
1. Revival of the Company Post-Winding Up Order:
The petition for revival was initiated by the ex-executive and ex-managing directors of the company, which was ordered to be wound up in 1992. The petitioners aimed to revive the company by negotiating settlements with creditors and addressing outstanding debts. The court considered the petitioners' proposal to pay all amounts due to creditors and the official liquidator, and their willingness to purchase shares at face value, even though the share value was zero at the time of winding up.
2. Validity of the Cancellation of Industrial Sheds Allotment:
The company had been allotted industrial sheds by the Haryana State Small Scale Industries and Export Corporation (HSSIEC), which were later cancelled due to non-payment of instalments. The petitioners argued that the cancellation, made after the winding up order, was void ab initio as it was done without court permission. The court agreed, citing that the cancellation was invalid since it occurred post-winding up without necessary leave under section 446 of the Companies Act. The court set aside the cancellation but allowed for potential future action by HSSIEC in accordance with the terms of allotment.
3. Settlement of Debts with Creditors:
The petitioners entered into a one-time settlement with UCO Bank, a major secured creditor, and obtained a no-objection certificate. They also proposed to pay the amounts due to other creditors, including unsecured and preferential creditors. The court noted that the petitioners had demonstrated bona fides by presenting demand drafts for the amounts due, including Rs. 2,83,213 for liquidation expenses and Rs. 29,74,000 to HSSIEC. The court directed the payment of these amounts to respective creditors within 15 days.
4. Legal Implications of Actions Taken Post-Winding Up Order Without Court Permission:
The court emphasized the legal requirement for obtaining court permission under section 446 of the Companies Act for any proceedings related to the company's assets post-winding up order. It ruled that actions taken without such permission, including the cancellation of the industrial sheds allotment, were void. The court referenced its previous rulings and the Supreme Court's stance on the interplay between the Companies Act and other financial legislation, reinforcing the necessity of court supervision in such matters.
5. Equitable Treatment of Creditors and Objections to the Revival Proposal:
Objections were raised by the respondents, including the original petitioner for winding up, who argued that the revival was not bona fide and that the company was commercially insolvent. The court addressed these objections by ensuring that all creditors would be paid amounts due up to the date of winding up, providing equitable treatment. The court deemed the petitioners' offer to pay interest up to the winding up date as the best possible settlement under the circumstances, as further liquidation would yield no better outcome for the creditors.
Conclusion:
The court ordered the revival of the company, subject to the payment of specified amounts to creditors and the official liquidator. It set aside the cancellation of industrial sheds allotment but allowed for future actions by HSSIEC as per the terms of allotment. The judgment emphasized compliance with legal procedures post-winding up and ensured equitable treatment of all creditors.
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2009 (5) TMI 1026
The High Court of Bombay dismissed the appeals as the questions of law raised were covered by previous judgments and the issues were based on factual findings by the tribunal. No substantial question of law was found. The appeals were dismissed with no order as to costs. (Citation: 2009 (5) TMI 1026 - BOMBAY HIGH COURT)
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2009 (5) TMI 1025
The Supreme Court dismissed the appeal against the High Court's refusal to entertain a petition under Section 482 Cr.P.C. challenging proceedings for an offence under Section 138 of Negotiable Instruments Act, 1881. The High Court was right in not entertaining the question of whether the accused persons were partners of the firm. The appeal was dismissed for lacking merit.
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2009 (5) TMI 1024
Issues Involved:
1. Validity of the appellant's admissional statements.
2. Involvement of the appellant in the hawala transactions.
3. Allegations of coercion and ill-treatment by the Enforcement Officers.
4. Denial of cross-examination of witnesses.
5. Proof of abetment by the appellant.
6. Requirement of proving mens rea (guilty mind) for the contravention.
Issue-wise Detailed Analysis:
1. Validity of the appellant's admissional statements:
The Tribunal examined whether the admissional statements made by the appellant were voluntary and truthful. It was established that the statements were made in an atmosphere free from fear and duress. The Tribunal referred to the Supreme Court's ruling in Kanhaiyalal v. Union of India, which held that statements recorded by enforcement officers are admissible if made voluntarily. The Tribunal concluded that the appellant's statements were voluntary and corroborated by other evidence, including the statement of co-noticee Punjabhai Shah.
2. Involvement of the appellant in the hawala transactions:
The Tribunal found that the appellant, Jayanti P. Shah, was closely associated with Punjabhai H. Shah in the hawala transactions. The appellant admitted in his statement that he assisted Punjabhai H. Shah in receiving and making payments on instructions from persons resident outside India. The recovery of a note pad from the appellant's residence and the corroboration of his statements by Punjabhai Shah's statements further established his involvement.
3. Allegations of coercion and ill-treatment by the Enforcement Officers:
The appellant alleged that his statements were obtained under coercion and threat. However, the Tribunal found no evidence to support these allegations. The remand order of the Magistrate did not indicate any injuries or force used by the Enforcement Officers. The Tribunal concluded that the allegations of coercion were bald assertions without any supporting evidence.
4. Denial of cross-examination of witnesses:
The appellant argued that the adjudication order was passed without giving him an opportunity to cross-examine the witnesses. The Tribunal held that cross-examination cannot be permitted merely on demand without establishing certain reasons and circumstances. The refusal of cross-examination was not considered a violation of natural justice, as the appellant failed to provide sufficient reasons for the same.
5. Proof of abetment by the appellant:
The Tribunal examined whether the appellant abetted Punjabhai H. Shah in the hawala transactions. It referred to the definition of abetment under Section 107 of the Indian Penal Code, which includes instigation, conspiracy, and intentional aiding. The Tribunal found that the appellant's close association with Punjabhai H. Shah and his active complicity in the transactions established the charge of abetment. The appellant's actions facilitated the commission of the contraventions, proving his role as an abettor.
6. Requirement of proving mens rea for the contravention:
The appellant argued that the prosecution failed to prove the culpable mental state (mens rea) required for the contravention. The Tribunal referred to the Supreme Court's ruling in The Chairman, SEBI v. Shriram Mutual Fund, which held that the intention of the parties committing the violation is irrelevant once the contravention is established. The Tribunal concluded that the appellant's contravention of the statutory obligations under FERA was established, and the penalty was justified irrespective of the presence of mens rea.
Conclusion:
The Tribunal dismissed the appeal, upholding the penalty imposed on the appellant for contravention of Section 9(1)(b) and 9(1)(d) read with Section 64(2) of the Foreign Exchange Regulation Act, 1973. The Tribunal directed the appellant to deposit the balance amount of the penalty within 15 days, failing which the amount may be recovered by the respondent in accordance with the law.
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2009 (5) TMI 1023
Title: Supreme Court of India Judgment 2009 (5) TMI 1023 - SC Order
Judges: Mr. S.H. Kapadia and Mr. Aftab Alam
Decision: Delay condoned, Civil Appeals dismissed.
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2009 (5) TMI 1022
Issues Involved:
1. Whether the High Court erred in directing the Food Corporation of India (FCI) to grant advance increments to deputationist employees from the State Government.
2. Applicability of Regulation 81 of the Food Corporation of India (Staff) Regulations, 1971 to the respondents.
3. Whether the writ petition was barred by delay or laches.
4. Whether the writ of mandamus was appropriate in this case.
5. Whether there was discrimination between Central Government and State Government employees.
6. Validity of classification under Article 14 of the Constitution of India.
Issue-wise Detailed Analysis:
1. High Court's Directive on Advance Increments:
The Supreme Court examined whether the High Court was correct in directing FCI to grant advance increments to 57 deputationist employees from the State Government. The respondents, who were initially deputationists from the State of West Bengal, were absorbed into FCI. They contended that they were entitled to advance increments as per Regulation 81 of the FCI (Staff) Regulations, 1971. The High Court had allowed their writ petition and directed FCI to grant the increments.
2. Applicability of Regulation 81:
Regulation 81 stipulates that an employee on first appointment to a post in FCI may have their pay fixed at a higher stage in the time-scale and may be granted one advance increment if they had been in continuous service for at least two years in any government department or public sector undertaking. The Supreme Court noted that both Central and State Government employees were similarly situated and performed similar duties. Therefore, the benefit of Regulation 81 should apply equally to both sets of employees. The Court found that FCI had extended this benefit to Central Government employees but not to State Government employees, which amounted to discrimination.
3. Delay or Laches:
The Supreme Court rejected the argument that the writ petition was barred by delay or laches. The earlier writ petition was disposed of on 29.08.1996, and the current petition was filed in 1997. Given that the Supreme Court's order was implemented on 07.10.1996, the Court held that there was no undue delay in filing the writ petition.
4. Writ of Mandamus:
The Court addressed whether a writ of mandamus was appropriate in this case. It was argued that Regulation 81 conferred discretionary power on the appointing authority, and thus, a mandamus could not be issued. However, the Supreme Court held that once a statutory authority exercises discretion in favor of one class of employees, it cannot deny the same benefit to another similarly situated class. Therefore, the High Court's issuance of a writ of mandamus was justified.
5. Discrimination Between Central and State Government Employees:
The Supreme Court found that FCI's differential treatment of Central and State Government employees was discriminatory. Both sets of employees were absorbed into FCI and were governed by the same regulations. The Court noted that the nature of duties, qualifications, and service conditions were similar for both groups. Thus, denying the benefit of advance increments to State Government employees while granting it to Central Government employees violated the equality clause under Article 14 of the Constitution.
6. Validity of Classification Under Article 14:
The Court examined whether the classification between Central and State Government employees was valid under Article 14, which allows reasonable classification. The Court held that the classification was not reasonable as both groups were similarly situated and performed similar duties. The Supreme Court cited previous judgments to emphasize that the principle of "equal pay for equal work" must be applied, and any classification must have a reasonable relation to the object sought to be achieved. In this case, the Court found no valid reason for the differential treatment.
Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's directive to grant advance increments to the deputationist employees from the State Government. The Court found that the respondents were entitled to the benefits under Regulation 81 of the FCI (Staff) Regulations, 1971, and that the differential treatment between Central and State Government employees was discriminatory and violated Article 14 of the Constitution. The writ petition was not barred by delay or laches, and the issuance of a writ of mandamus was appropriate.
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2009 (5) TMI 1021
Issues Involved:
1. Whether 'ghee' is a 'product of livestock' under the Andhra Pradesh (Agricultural Produce & Livestock) Markets Act, 1966.
2. Validity of Government Notification G.O.Ms. No. 286, dated 05.07.1994, notifying 'ghee' as a product of livestock.
3. Procedural compliance under Sections 3 and 4 of the Act.
Issue-wise Analysis:
1. Whether 'ghee' is a 'product of livestock' under the Andhra Pradesh (Agricultural Produce & Livestock) Markets Act, 1966:
The court examined the definitions of 'livestock' and 'products of livestock' under Sections 2(v) and 2(xv) of the Act. It was noted that 'ghee' is not directly extracted from livestock but is derived from butter or cream, which are products of livestock. The court concluded that 'ghee' is a natural product derived ultimately from milk, a product of livestock. The legislative intention was interpreted to include derivative items as products of livestock. The court cited multiple precedents, including the Supreme Court's decision in Park Leather Industry (P) Limited v. State of U.P., which supported the broader interpretation of products derived from livestock. Thus, the court held that 'ghee' is a product of livestock under the Act.
2. Validity of Government Notification G.O.Ms. No. 286, dated 05.07.1994, notifying 'ghee' as a product of livestock:
The court analyzed the procedural requirements under Sections 3 and 4 of the Act for issuing notifications. It was argued that the impugned notification was issued without following the mandatory procedure of inviting objections and suggestions. The respondents contended that the power to issue general notifications under Section 4(4) was valid and did not require separate notifications for each market area. The court noted that while Section 3 mandates inviting objections, Section 4 does not explicitly require this for every notification. The court held that the impugned notification did not suffer from procedural irregularities, as the legislature did not intend for the principles of natural justice to apply in this context. The court relied on precedents, including Sasa Musa Sugar Works v. State of Bihar, which supported the view that procedural compliance under Sections 3 and 4 is not always mandatory for every notification.
3. Procedural compliance under Sections 3 and 4 of the Act:
The court examined whether the procedural steps under Sections 3 and 4 were followed before issuing the impugned notification. It was argued that the notification was issued without establishing market committees and providing necessary facilities as required under Section 4. The court held that the procedural steps under Sections 3(1) to 3(3) and 4(1) to 4(3) are mandatory only when merging or de-merging notified areas or market areas. For issuing notifications under Section 4(4), the court found that the government could issue general notifications without following the entire procedure each time. The court emphasized that the interpretation should make the statute workable and further its object. The court concluded that the impugned notification was valid and did not suffer from any procedural irregularities.
Conclusion:
The court held that 'ghee' is a product of livestock under the Act and that the impugned notification G.O.Ms. No. 286, dated 05.07.1994, was valid. The court dismissed the writ petition, upholding the notification's validity and confirming that the procedural requirements under Sections 3 and 4 were not violated. The court emphasized the need for a practical interpretation of the statute to ensure its effective implementation.
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2009 (5) TMI 1020
Issues Involved:1. Validity of the appellant's second marriage. 2. Applicability of Section 498A IPC regarding cruelty. Summary:Issue 1: Validity of the Appellant's Second MarriageThe appellant was charged u/s 494 IPC for marrying Smt. Ranju Sarma while his first marriage with Smt. Minati Das (Kalita) was subsisting. The Trial Court, Appellate Court, and High Court all found the second marriage valid. The Supreme Court upheld these concurrent findings, stating that re-appreciation of evidence by the higher court is not warranted unless the findings are perverse. The Court emphasized that it should not interfere with the exercise of discretion by the lower courts if done in good faith and based on relevant material. Issue 2: Applicability of Section 498A IPCThe appellant was also charged u/s 498A IPC for subjecting his wife to cruelty. The complainant alleged physical and mental torture, leading her to leave the matrimonial home in 1993. The FIR was filed in 1997. The Supreme Court examined the definition of 'cruelty' u/s 498A IPC, which includes any willful conduct likely to drive a woman to commit suicide or cause grave injury. The Court noted that cruelty must be continuous or in close proximity to the complaint. The Trial Court found no evidence of harassment intended to drive the complainant to suicide or fulfill illegal demands. The Appellate Court and High Court also did not find continuous cruelty after 1993. The Supreme Court concluded that the findings of the lower courts were more relevant to matrimonial disputes rather than criminal charges u/s 498A IPC. Therefore, the conviction u/s 498A IPC was set aside, but the conviction and sentence u/s 494 IPC were maintained. Conclusion:The appeal was partially allowed, setting aside the conviction u/s 498A IPC while maintaining the conviction and sentence u/s 494 IPC.
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2009 (5) TMI 1019
Issues involved: Challenge to the dismissal of anticipatory bail application u/s 438 of Cr.P.C.
Summary:
Issue 1: Challenge to dismissal of anticipatory bail application
The petition was filed to challenge the judgment and order of a learned Single Judge of the High Court of Punjab & Haryana at Chandigarh, which dismissed the Application u/s 438 of the Cr.P.C. for grant of anticipatory bail. The Supreme Court, after hearing the arguments, declined to interfere with the impugned judgment and order. However, the Court reiterated that a Court hearing a regular bail application has the inherent power to grant interim bail pending final disposal of the bail application. This power is derived from Article 21 of the Constitution of India, which safeguards the life and liberty of every individual. The Court emphasized that a person's reputation is a valuable asset and is protected under Article 21, and therefore, the Court has the discretion to grant interim bail to prevent irreparable harm to the reputation of the applicant.
Issue 2: Inherent power of the court to grant interim bail
The Supreme Court held that there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. While the decision to grant interim bail rests with the discretion of the court, the power to do so exists. In the present case, the Court stated that if the petitioners surrender before the Court concerned and request interim bail pending final disposal of the bail application, the same shall be considered and decided on the same day. With these observations, the petition was disposed of.
This judgment highlights the Court's stance on the inherent power of the court to grant interim bail and the importance of protecting an individual's reputation while considering bail applications.
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2009 (5) TMI 1018
Issues involved: Whether blending and packing of tea amounts to manufacturing u/s the U.P. Trade Tax Act for the assessment year 1998-99.
The High Court considered the question of law regarding the classification of blending and packing of tea as manufacturing. The assessee was engaged in blending and packaging of tea, where the final product remained tea itself. The court referred to previous judgments, including those of the Hon'ble Supreme Court, to analyze the concept of "manufacture" under the U.P. Trade Tax Act. It was emphasized that for an activity to be considered manufacturing, it must result in the emergence of a new commercial commodity with a new commercial identity. The court highlighted that if the goods remain the same and are identifiable under the Act as the same commodity, it would not amount to manufacturing.
The court also took into account a decision of the same Court in a similar case, where it was concluded that blending and packing of tea did not result in the creation of a new commercial commodity. Based on the legal precedents and interpretations of the relevant provisions, the court held that the unbranded tea produced through blending did not amount to the manufacture of a new commercial commodity. Consequently, the question was answered in favor of the assessee and against the department. The revision filed by the State was dismissed accordingly.
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2009 (5) TMI 1017
The Supreme Court of India in 2009 dismissed the case after condoning the delay. The Respondent did not have representation during the hearing.
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2009 (5) TMI 1016
Issues involved:
Defendant's second appeal challenging judgment and decrees for possession by way of specific performance of agreement to sell.
Details of the judgment:
The bone of contention was land measuring 34 kanals at village Bare Ke, Tehsil and Distt. Ferozepur. Narain Singh, the previous owner, allegedly entered into an agreement to sell the land to the plaintiff-respondent. The sale deed was to be executed by a certain date, but it was not done, leading to the present suit. Narain Singh's legal heirs, the defendants, denied the agreement and claimed dealings with a Commission agent. The trial Court decreed in favor of the plaintiff-respondent. The Lower Appellate Court dismissed the appeal, stating no actual delivery of possession was proven. The defendants challenged the judgments and decrees of the lower courts, arguing that the agreement required registration due to possession being delivered to the plaintiff-respondent. The plaintiff-respondent argued against registration based on a judgment from the Andhra Pradesh High Court. The Court found the defendants' argument misconceived as no evidence was presented to support their claim of possession being delivered. The Lower Appellate Court's findings were upheld, stating possession was not proven to have been delivered, hence the agreement did not require registration. The Court cited previous cases to support this conclusion and dismissed the appeal, stating the substantial question of law raised by the defendants did not apply in this case.
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2009 (5) TMI 1015
Issues Involved:
1. Interpretation of the term "relative of husband of a woman" u/s 498A of the Indian Penal Code (IPC).
2. Applicability of Section 498A IPC to a 'girl friend' or 'concubine'.
Summary:
Issue 1: Interpretation of "relative of husband of a woman" u/s 498A IPC
The core question was whether the term "relative of husband of a woman" within the meaning of Section 498A IPC should be given an extended meaning to include a 'girl friend' or 'concubine'. Section 498A IPC states: "Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine." The explanation defines "cruelty" as any willful conduct likely to drive the woman to commit suicide or cause grave injury or danger to life, limb, or health, or harassment with a view to coercing her to meet any unlawful demand for property or valuable security.
The court noted that the term "relative" is not defined in IPC and must be understood in its common parlance, which typically includes persons related by blood, marriage, or adoption. The court referred to various legal dictionaries and previous judgments to conclude that the term "relative" principally includes a person related by blood, marriage, or adoption.
Issue 2: Applicability of Section 498A IPC to a 'girl friend' or 'concubine'
The court observed that the appellant was described as the 'girl friend' of the husband in the first information report (FIR) and only at the end was referred to as a 'concubine'. The court held that a 'girl friend' or 'concubine' does not fall within the ambit of "relative" u/s 498A IPC. The court emphasized that the provision is penal and deserves strict construction. It stated, "By no stretch of imagination a girl friend or even a concubine in an etymological sense would be a 'relative'. The word 'relative' brings within its purview a status. Such a status must be conferred either by blood or marriage or adoption."
The court also referred to previous judgments, including those from the Andhra Pradesh High Court and Bombay High Court, which held that a 'concubine' or 'girl friend' cannot be considered a "relative" of the husband for the purposes of Section 498A IPC.
Conclusion:
The court concluded that the appellant, being a 'girl friend' or 'concubine', is not a relative of the husband of the first informant within the meaning of Section 498A IPC. Therefore, the impugned judgment was set aside, and the appeal was allowed.
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2009 (5) TMI 1014
The Bombay High Court dismissed the appeal regarding the limitation for invoking power under Section 263(1) of the Income Tax Act, citing a judgment approved by the Supreme Court. No substantial question of law was found.
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2009 (5) TMI 1013
Issues Involved:
1. Disallowance of deductions under Section 43B.
2. Disallowance of software expenses as capital expenditure.
3. Disallowance of bad debts under Section 36(1)(vii) read with Section 36(2).
4. Addition to WDV of assets due to foreign exchange fluctuation.
5. Allowance of customs duty paid on goods imported for export.
6. Allowance of excise duty on inputs in closing stock.
7. Allowance of customs duty on closing inventory with vendors.
8. Allowance of CST and LST paid under protest.
9. Allowance of excise duty paid under protest.
10. Excess claim of consumption of stock.
11. Loss on account of foreign exchange fluctuation.
12. Depreciation on enhanced liability due to customs duty.
13. Deletion of addition under Section 14A.
14. Allowance of legal expenses.
15. Disallowance under Section 40(a)(i).
16. Loss on sale of shares treated as long-term capital loss.
17. Depreciation on foreign exchange fluctuation.
18. Membership fees as business expenditure.
Detailed Analysis:
1. Disallowance of Deductions under Section 43B:
- Excise Duty Paid: The Tribunal dismissed the assessee's grounds (1.1 and 1.2) based on the Special Bench decision in *Glaxo Smithkline Consumer Healthcare Ltd.*, which held that unutilized MODVAT credit is not an allowable deduction.
- Sales Tax Paid: The Tribunal dismissed the assessee's ground (1.3) following the decision in the assessee's own case for AY 1999-2000, which held that the sum paid for the purchase of inputs is allowable in the year of adjustment on the sale of finished stock.
- Sales Tax Recoverable: Similar to ground 1.3, the Tribunal dismissed ground 1.4 following the same rationale.
2. Disallowance of Software Expenses as Capital Expenditure:
- The Tribunal restored the issue to the AO for reconsideration in line with the Special Bench decision in *Amway India Enterprises*, which requires detailed verification.
3. Disallowance of Bad Debts under Section 36(1)(vii) read with Section 36(2):
- The Tribunal allowed the assessee's grounds (3 to 3.4) following the Delhi High Court decisions in *Autometers Ltd.* and *Morgan Securities and Credits Pvt. Ltd.*, which held that bad debts written off in accounts are deductible.
4. Addition to WDV of Assets due to Foreign Exchange Fluctuation:
- The assessee did not press this ground, and it was dismissed as 'not pressed.'
5. Allowance of Customs Duty Paid on Goods Imported for Export:
- The Tribunal dismissed the Revenue's ground 1, following the decision in the assessee's own case for AY 1999-2000, which allowed the deduction under Section 43B.
6. Allowance of Excise Duty on Inputs in Closing Stock:
- The Tribunal allowed the Revenue's ground 2 based on the Special Bench decision in *Glaxo Smithkline Consumer Healthcare Ltd.*, which disallowed unutilized MODVAT credit.
7. Allowance of Customs Duty on Closing Inventory with Vendors:
- The Tribunal dismissed the Revenue's ground 3, following the decision in the assessee's own case for AY 1999-2000, which allowed the deduction under Section 43B.
8. Allowance of CST and LST Paid under Protest:
- The Tribunal dismissed the Revenue's grounds 5 and 6, following the decisions in the assessee's own case for AY 2000-01, which allowed the deductions under Section 43B.
9. Allowance of Excise Duty Paid under Protest:
- The Tribunal dismissed the Revenue's ground 7, following the decision in the assessee's own case for AY 2000-01, which allowed the deduction under Section 43B.
10. Excess Claim of Consumption of Stock:
- The Tribunal dismissed the Revenue's ground 8, following the decision in the assessee's own case for AY 2000-01 and 2004-05, which upheld the assessee's claim.
11. Loss on Account of Foreign Exchange Fluctuation:
- The Tribunal dismissed the Revenue's ground 10, following the Delhi High Court decision in *Woodward Governor India Pvt. Ltd.* and the Tribunal's decision in the assessee's own case for AY 1999-2000.
12. Depreciation on Enhanced Liability due to Customs Duty:
- The Tribunal dismissed the Revenue's ground 11, following the decisions in the assessee's own case for AY 1999-2000 and 1998-99, which upheld the allowance of depreciation.
13. Deletion of Addition under Section 14A:
- The Tribunal restored the issue to the AO for re-adjudication in line with the Special Bench decision in *Daga Capital Management Pvt. Ltd.*, which requires quantification under Rule 8-D.
14. Allowance of Legal Expenses:
- The Tribunal dismissed the Revenue's ground 13, following the decision in the assessee's own case for AY 1999-2000, which allowed the deduction.
15. Disallowance under Section 40(a)(i):
- The Tribunal dismissed the Revenue's ground 14, holding that the commission paid to non-resident agents for services rendered outside India is not chargeable to tax in India, and thus, Section 195 does not apply.
16. Loss on Sale of Shares Treated as Long-term Capital Loss:
- The Tribunal dismissed the Revenue's ground 15, holding that the redemption of preference shares does not constitute a sale and thus cannot be treated as speculative loss, following the Delhi High Court decision in *Sahara India Financial Corporation*.
17. Depreciation on Foreign Exchange Fluctuation:
- The Tribunal dismissed the Revenue's ground 16, following the Delhi High Court decision in *Woodward Governor India Pvt. Ltd.* and the Tribunal's decision in the assessee's own case for AY 1999-2000.
18. Membership Fees as Business Expenditure:
- The Tribunal dismissed the Revenue's ground 17, holding that club membership fees incurred by directors and senior officials for business reasons are allowable, following the Bombay High Court decisions in *Otis Elevators* and *American Express International Banking Corporation*.
Conclusion:
- The appeal of the assessee is partly allowed for statistical purposes.
- The appeal of the revenue is partly allowed for statistical purposes.
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2009 (5) TMI 1012
Avoidance of execution and registration of deeds of conveyance - Mode of transfer of freehold immovable property by increasing tendency to adopt `Power of Attorney Sales' - execution of sale agreement/ general power of attorney/will (`SA-GPA-Will transactions') - No action taken against FIR for offences punishable u/s 406, 420, 467, 468, 471 and 120B of IPC - filed an application under Right to Information Act, 2004 (`RTI Act') - Petitioner lodged a criminal complaint against Ramanath and members of his family who executed the sale agreement/ GPA/will in favour of the petitioner and another complaint against Dharambir Yadav and his son in the District Court.
HELD THAT:- The `Power of Attorney Sales' as a method of `transfer' was evolved by lawyers and document writers in Delhi, to overcome certain restrictions on transfer of flats by the Delhi Development Authority (for short `DDA'). To avoid the cumbersome procedure in obtaining permission and to avoid payment of the huge part of the price to the DDA as unearned increase, a hybrid system was evolved whereby the allottee/holder of the flat, on receiving the agreed consideration would deliver the possession of the flat to the purchaser and execute the following documents:
(a) An Agreement of sale confirming the terms of the sale, delivery of possession and payment of full consideration and undertaking to execute any document when required in future.
(b) An Irrevocable General Power of Attorney in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor.
(c) A will bequeathing the property to the purchaser as safeguard against the consequences of death of the vendor before transfer.
The `Power of Attorney Sales', as noticed above was adopted to overcome the restrictions/prohibitions in terms of allotment and the rules of allotment of DDA governing the allotment of flats. Such transactions were obviously irregular and illegal being contrary to the rules and terms of allotment. Further, in the absence of a registered deed of conveyance, no right, title or interest in an immovable property could be transferred to the purchaser.
In fact, it is stated that DDA itself ultimately recognizes `Power of Attorney Sales' by accepting applications from purchasers under `Power of Attorney Sales' for conversion from leasehold to freehold and conveyance of the flats. We will therefore presently exclude the `power of attorney sales' of DDA flats from the purview of the present exercise.
Extension of the concept of such `Power of Attorney Sales' by execution of SA/GPA/Will with reference to freehold properties - Section 49 of The Registration Act, 1908, provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed.
Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons:
(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.
Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption. This kind of transactions has disastrous collateral effects also.
When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions.
We are therefore of the view that the situation warrants special measures. We are informed that sometime back in 2008, there was a proposal to amend Section 147 of Delhi Municipal Corporation Act, 1957 to check and discourage `power of attorney sales'. There was also a proposal to have special enactment relating to registration and recording of title in Delhi. But so far nothing appears to have fructified. It is the dream of every citizen to own a house or a plot of land. The citizens must be enabled by the government to do so with safety, security and without fear of litigation or defects in title.
We therefore request the Solicitor General to appear in the matter and give suggestions on behalf of Union of India. We also direct notice to the States of Punjab, Haryana, Delhi, Uttar Pradesh and Maharashtra (represented by their respective Chief Secretary/Revenue Secretary) to consider issues.
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2009 (5) TMI 1011
Issues Involved:
1. Whether there was negligence on the part of PGI and its medical staff in transfusing mismatched blood.
2. Whether the mismatched blood transfusion was the cause of death of Smt. Harjit Kaur.
3. Whether the compensation awarded by the State Commission was justified.
Summary:
Issue 1: Negligence in Transfusing Mismatched Blood
The appellant, PGI, challenged the order of the National Consumer Disputes Redressal Commission, which affirmed the State Commission's decision directing PGI to pay compensation for negligence. The State Commission concluded that there was serious deficiency and negligence on the part of PGI and its attending doctor(s)/staff in transfusing wrong blood group to the patient, Smt. Harjit Kaur, which resulted in her death. The National Commission upheld this view, noting that the mismatched blood transfusion caused significant harm to the patient's health, leading to her eventual death.
Issue 2: Cause of Death
The learned Counsel for PGI contended that Smt. Harjit Kaur died due to septicemia and not due to mismatched blood transfusion. However, the evidence showed that her condition deteriorated significantly after the mismatched blood transfusion, with her hemoglobin level dropping and her kidney and liver functions being affected. The State Commission observed that the mismatched blood transfusion materially contributed to her death, if not wholly, and this was affirmed by the National Commission.
Issue 3: Justification of Compensation
The State Commission directed PGI to pay compensation of rupees two lacs to the complainants, with 3/4th to be put in a fixed deposit for the minor son and 1/4th to be paid to the complainant No. 1, along with costs of Rs. 5,000/-. The National Commission upheld this decision, and the Supreme Court concurred, finding no error of law in the National Commission's view.
Conclusion:
The Supreme Court dismissed the appeal, affirming the findings of negligence and the causal link between the mismatched blood transfusion and the patient's death. The compensation awarded by the State Commission was upheld, and the appeal was dismissed with costs quantified at Rs. 20,000/-.
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2009 (5) TMI 1010
Issues involved: Appeal against order of acquittal in a case u/s 138 of the N.I. Act based on dishonored cheque and plea of limitation.
Details of the Judgment:
Issue 1: Determination of limitation period for filing complaint
The appeal was against the acquittal in a case u/s 138 of the N.I. Act due to the plea of limitation. The complainant alleged that the accused borrowed a sum and issued a cheque which was dishonored. The court below found in favor of the complainant on all points except limitation. The crucial issue was determining the correct date from which the limitation period should be calculated. The court explained that u/s 138(b) & (c) of the Negotiable Instruments Act, a notice must be issued within 15 days of receiving information about the dishonored cheque, and the complainant must wait for 15 days after the notice is received by the accused before filing a complaint u/s 142(b). The court analyzed a similar case from the Delhi High Court to establish the principles for calculating the limitation period based on the date of the postman taking the envelope. In this case, the date of reckoning was found to be 3.8.1998. Calculating 15 days from that date, the deadline for filing the complaint was 17.8.1998, and within 30 days from that date, the complaint should have been filed by 16.9.1998. However, the complaint was filed on 18.9.1998, which was beyond the statutory period, leading to the dismissal of the appeal on grounds of limitation.
Conclusion:
The court upheld the decision of the trial court, dismissing the appeal as the complaint was not filed within the statutory period, despite a slight difference of one or two days, rendering the prosecution invalid.
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