|
Advanced Search Options
Case Laws
Showing 1 to 20 of 298 Records
-
1992 (9) TMI 387
Issues: Condonation of delay and waiver of pre-deposit of penalty
The judgment by the Appellate Tribunal of the Foreign Exchange Regulation Appellate Board dealt with the issue of condonation of delay and waiver of pre-deposit of a penalty imposed on the appellant. The relevant section 52(2) of the Foreign Exchange Regulation Act, 1973 was cited, emphasizing the time limit for filing an appeal and the Board's power to entertain appeals beyond the initial period. The Board clarified that it does not have the authority to condone delays beyond 90 days. In this case, the appellant received the adjudication order on 10-3-1990 and the appeal was received by the Board on 11-6-1990, exceeding the 90-day limit. The appellant argued that the appeal was dispatched on 7-6-1990, within the time limit if counted from the date of dispatch. However, discrepancies arose regarding the actual dispatch date, with the written submission stating 9-6-1990. The Board held that the date of receipt by the Registry is crucial for calculating the limitation period under section 52(2). Since the appeal reached the Board on 11-6-1990, it was filed beyond the 90-day limit, rendering the issue of dispatch date irrelevant. Despite the provision to condone delays up to 45 days, the Board emphasized that no condonation is permissible beyond 90 days. Consequently, the appeal was dismissed as time-barred.
This judgment underscores the strict adherence to statutory timelines for filing appeals under the Foreign Exchange Regulation Act, 1973. It highlights the significance of the date of receipt by the Registry in determining the commencement of the limitation period, emphasizing the need for appellants to ensure timely submission. The Board's interpretation of the statutory provisions regarding condonation of delays up to 90 days serves as a reminder of the limitations on the Board's discretion in such matters. The case exemplifies the importance of procedural compliance and the consequences of failing to meet statutory deadlines in appellate proceedings.
-
1992 (9) TMI 386
The appeal was dismissed for non-compliance of the Board's order to deposit a penalty amount of Rs. 2,65,000 within a specified time frame. The appellant failed to make the pre-deposit despite extensions granted by the High Court, leading to the dismissal of the appeal.
-
1992 (9) TMI 385
Issues:
Violation of sections 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973; Confiscation of seized amount under section 63 of the Act; Voluntariness of confessional statement; Allegations of contravention against the appellant; Validity of penalty and confiscation imposed.
Analysis:
The judgment pertains to an appeal against an adjudication order imposing penalties and confiscating an amount under the Foreign Exchange Regulation Act, 1973. The appellant, Mr. Tan Boon Toong, was alleged to have contravened sections 9(1)(b) and 9(1)(d) by receiving payments without authorization and making payments on behalf of his wife, a resident outside India. The appellant contested the allegations, claiming his role was limited to providing guide services to medical patients from Malaysia. The appellant argued that the confessional statement was not voluntary and retracted it, citing various legal precedents to support his defense.
The respondent contended that the confessional statement was voluntary and not retracted in the show-cause notice reply. The appellant had admitted to receiving and making payments in his statements to the Enforcement Officer, which were corroborated. The respondent argued that the allegations were based on voluntary statements and thus established against the appellant. The appellant's explanation in the show-cause notice reply was deemed unrealistic and unbelievable by the Adjudicating Officer.
The Tribunal found the confessional statement to be voluntary and corroborated, dismissing the appellant's claim of misunderstanding. Legal precedents were cited to support the reliance on confessional statements and the burden of proof on prosecuting agencies. The Tribunal emphasized that once a confessional statement is believed to be true and voluntary, its facts cannot be rebutted by a mere affidavit. The penalty imposed and confiscation of the amount were deemed reasonable and proportionate to the contravention. The appeal was dismissed, confirming the adjudication order based on adequate material and valid reasons.
In conclusion, the judgment upholds the penalties and confiscation imposed on the appellant for contravention of the Foreign Exchange Regulation Act, emphasizing the voluntariness of the confessional statement and the sufficiency of evidence supporting the allegations. The legal analysis provided clarity on the burden of proof, reliance on confessional statements, and the reasonableness of penalties in such cases.
-
1992 (9) TMI 384
Issues:
1. Application for recalling witnesses under Section 311 of the Code of Criminal Procedure.
2. Refusal of the trial Judge to allow the recall of witnesses.
3. Interpretation of the law regarding the power of the court under Section 311 of the Code.
4. Challenge to the trial Judge's order through a petition under Section 482 of the Code.
Analysis:
1. The case involved an application under Section 311 of the Code for recalling witnesses made by the mother of the deceased during a trial where non-applicants 2 and 3 were facing charges under Section 302/34 I.P.C. for the alleged murder of Shakeel Hyder. The application was based on the alleged failure of the then Public Prosecutor to properly handle the examination of witnesses, leading to a request for their recall for further examination.
2. The trial Judge had initially rejected the applications for recalling witnesses, stating that the prosecution could challenge the witnesses' evidence during final arguments and that recalling them would cause delay. However, the petitioner challenged this decision through a petition under Section 482 of the Code, supported by the State, arguing that the failure to cross-examine the witnesses during their initial examination by the prosecution left no grounds for challenging their credibility during arguments.
3. The petitioner relied on the principles laid down in Mohanlal Shamji Soni v. Union of India to emphasize the importance of using the power under Section 311 judiciously to ensure a just decision. The court noted that the failure to cross-examine the witnesses earlier was not due to a lack of necessity but rather external factors, and that recalling them was essential for a fair trial and to enable the prosecution to question them appropriately.
4. Ultimately, the court allowed the petition, setting aside the trial Judge's order and directing the immediate recall of the witnesses to facilitate cross-examination by the prosecution and potentially by the defense. The court emphasized the need for expeditious proceedings after the re-examination of the witnesses, highlighting the importance of ensuring a just decision in the trial.
This detailed analysis highlights the key legal issues surrounding the application for recalling witnesses under Section 311 of the Code, the refusal by the trial Judge, the interpretation of the law in this context, and the resolution of the matter through a petition under Section 482 of the Code.
-
1992 (9) TMI 383
Issues:
1. Quashing of criminal proceedings under Section 482 of the Code of Criminal Procedure.
2. Interpretation of Section 138 of the Negotiable Instruments Act regarding the presentation of post-dated cheques within the prescribed time limit.
Analysis:
1. The petitioner issued four post-dated cheques to the first respondent, which bounced due to insufficient funds. The first respondent initiated criminal proceedings under Section 138 of the Negotiable Instruments Act. The petitioner contended that the cheques were presented beyond the six-month period prescribed by the Act, rendering the prosecution not maintainable. The first respondent argued that the cheques were presented within the stipulated time frame. The key issue was the interpretation of the presentation timeline under Section 138.
2. The first respondent issued a registered notice stating that the post-dated cheques were issued on 23-6-1990 and presented for encashment on 18-1-1992, exceeding the six-month period. The petitioner relied on judgments from different High Courts regarding the treatment of post-dated cheques. The Punjab and Haryana High Court opined that post-dating a cheque beyond the presentation period implies the payee's awareness of potential dishonor. The court analyzed conflicting judgments to determine the correct interpretation of when a post-dated cheque should be considered as drawn.
3. The court deliberated on the implications of treating post-dated cheques based on the date of delivery versus the date mentioned on the cheque. It concluded that a post-dated cheque should be deemed as drawn on the delivery date to prevent abuse of the law by payees accepting cheques with future dates beyond the statutory limit. Consequently, the court quashed the criminal proceedings against the petitioner as the cheques were presented after the six-month period, aligning with the interpretation derived from relevant judgments.
4. In conclusion, the court allowed the criminal petition, dismissing the charges against the petitioner based on the correct interpretation of Section 138 of the Negotiable Instruments Act and the treatment of post-dated cheques concerning the timeline for presentation. The judgment clarified the legal position on post-dated cheques and their implications under the Act, providing clarity on the issue at hand.
-
1992 (9) TMI 382
Issues Involved:
1. Interim order and stay of proceedings.
2. Exemption under Section 20(1) of the Urban Land (Ceiling and Regulation) Act, 1976.
3. Government Memo No. 580/UC.II(2)/83-87.
4. Public interest and undue hardship.
5. Legitimate expectation.
6. Procedural improprieties and file notings.
7. Competence of the Chief Secretary to hear the matter.
8. Possession and vesting of land.
9. Discrimination and differential treatment.
10. Compliance with Government Orders and statutory provisions.
Detailed Analysis:
1. Interim Order and Stay of Proceedings:
The writ appeal arose from an interim order passed by a learned single judge, directing a stay of all further proceedings pursuant to G.O. Ms. No. 957 Revenue (UC.I) Department. The State appealed against the interim order. The Division Bench directed that the writ appeal be posted along with the writ petition, and thus both matters were heard together.
2. Exemption under Section 20(1) of the Urban Land (Ceiling and Regulation) Act, 1976:
Petitioner No. 1 sought exemption of about 300 acres known as 'Chiran Palace' under Section 20(1) of the Ceiling Act. The application was initially rejected by the Government, and subsequent representations were also rejected. The court directed the Government to consider the application afresh, but the Government again rejected the exemption request. The petitioners challenged this rejection.
3. Government Memo No. 580/UC.II(2)/83-87:
The petitioners filed writ petitions to quash Government Memo No. 580/UC.II(2)/83-87, which rejected their applications for exemption. The court examined the procedural history and the Government's reasons for rejection, concluding that the rejection was in compliance with the law.
4. Public Interest and Undue Hardship:
The petitioners argued that exemption should be granted due to public interest and undue hardship. The court noted that the petitioner had not sufficiently raised the issue of public interest before the statutory authority. The court found that the petitioner had other protected lands that could be sold to pay off tax arrears, thus not justifying undue hardship.
5. Legitimate Expectation:
The petitioners claimed legitimate expectation based on Government correspondence and file notings. The court held that legitimate expectation does not grant an absolute right to a particular decision and is limited to ensuring fair hearing. The petitioner had not complied with the necessary conditions, and thus no legitimate expectation was created.
6. Procedural Improprieties and File Notings:
The court condemned the petitioner's conduct in obtaining Government files on the sly and using them to support their claim. The court emphasized that file notings by Ministers are not final orders unless communicated and cannot support a claim for legitimate expectation.
7. Competence of the Chief Secretary to Hear the Matter:
The petitioners questioned the Chief Secretary's competence to hear the matter, alleging bias. The court found that the objection was withdrawn during the hearing before the Chief Secretary and that the Chief Secretary acted within his delegated authority.
8. Possession and Vesting of Land:
The State Government claimed it had taken possession of the excess land before the interim order was passed. The court noted that procedural requirements under the Ceiling Act were complied with, and the land had vested in the Government.
9. Discrimination and Differential Treatment:
The petitioners argued that refusal of exemption amounted to differential treatment. The court found no evidence of discrimination, noting that the petitioners had other means to pay off tax arrears and that the Government's decision was based on statutory compliance.
10. Compliance with Government Orders and Statutory Provisions:
The court examined compliance with G.O.Ms. No. 4271 and G.O.Ms. No. 136, which laid down guidelines for exemption. The petitioners had not complied with these conditions, and their applications were rightly rejected.
Conclusion:
The court dismissed the writ petitions and the writ appeal, allowing the State Government to proceed with the implementation of its decisions. The petitioners were ordered to pay the costs of the respondents. The judgment emphasized compliance with statutory provisions and the limited scope of legitimate expectation in administrative law.
-
1992 (9) TMI 381
Issues involved:
Whether a third-party petitioner has 'locus standi' to challenge a conviction and sentence awarded to the convicts under Article 32 of the Constitution.
Summary:
The judgment pertains to a petition filed under Article 32 of the Constitution by a third-party petitioner challenging the conviction and sentence of two accused individuals in a case involving the assassination of General Vaidya. The Designated Court convicted two accused individuals for the murder of General Vaidya and causing injury to his wife, sentencing them to death and rigorous imprisonment. The petitioner, a political leader, alleged violations of Articles 22, 21, and 14 of the Constitution, questioning the jurisdiction of the Designated Court and the Supreme Court in confirming the death sentence. The petitioner contended that the case should have been decided by the High Court of Maharashtra and raised concerns about the constitutional validity of the TADA Act. However, the Supreme Court held that the petitioner, being a third-party stranger with no direct personal stake in the case, lacked 'locus standi' to challenge the conviction and sentence imposed by the Court after a regular trial. The Court emphasized that only the aggrieved party affected by an order has the right to seek redress, and allowing third-party challenges could lead to unwarranted interference in judicial decisions. Citing precedents, the Court rejected the petition, stating that the petitioner had no standing to invoke the Court's jurisdiction under Article 32 of the Constitution.
This judgment clarifies the limitations on third-party interventions in criminal proceedings and underscores the principle that only the aggrieved party directly affected by a decision has the right to challenge it.
-
1992 (9) TMI 380
Issues Involved:
1. Conviction and sentencing under the Prevention of Food Adulteration Act, 1954.
2. Compliance with Rule 7(3) of the Prevention of Food Adulteration Rules.
3. Whether Rule 7(3) is mandatory or directory.
4. Prejudice to the accused due to delay in delivering the Public Analyst's report.
Issue-wise Analysis:
1. Conviction and Sentencing under the Prevention of Food Adulteration Act, 1954:
The Sub Divisional Judicial Magistrate, Golaghat convicted the first accused firm and the second accused vendor under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954. The first accused was fined Rs. 1000/-, while the second accused was sentenced to six months of rigorous imprisonment and a fine of Rs. 1000/-, with an additional one month of rigorous imprisonment in default of payment. Accused 3 to 5, partners of the firm, were acquitted. The conviction and sentence were confirmed by the Sessions Judge, Jorhat, leading to the present revision petition.
2. Compliance with Rule 7(3) of the Prevention of Food Adulteration Rules:
The main contention raised by the petitioners was the alleged violation of sub-clause (3) of Rule 7, which mandates the Public Analyst to deliver the report within forty-five days from the receipt of the sample. The sample was taken on 26.8.81, received by the Public Analyst on 1.9.81, and the report was dated 30.9.81. However, the forwarding letter from the Local Health Authority to the Food Inspector was dated 28.10.81, suggesting a delay beyond the stipulated forty-five days.
3. Whether Rule 7(3) is Mandatory or Directory:
The court examined whether Rule 7(3) is mandatory or directory by considering various precedents and principles of statutory interpretation. The Supreme Court's observations in State of Mysore v. V.K Kanqan and Pratap Singh v. Shri Krishna Gupta emphasized that not all procedural laws are mandatory; some are directory, and substantial compliance is sufficient unless prejudice is shown. The court noted that the objective of the Prevention of Food Adulteration Act is to prevent adulteration and protect public health, and a rigid interpretation of procedural rules could defeat this purpose.
4. Prejudice to the Accused due to Delay in Delivering the Public Analyst's Report:
The court held that the accused must demonstrate actual prejudice resulting from the delay in receiving the Public Analyst's report. The accused did not request the court to send another part of the sample to the Director, Central Food Laboratory for analysis, nor did they show that the delay affected their ability to defend themselves. The court concluded that Rule 7(3) is directory, not mandatory, and substantial compliance with the rule is sufficient unless the accused can prove prejudice.
Conclusion:
The court dismissed the revision petition, upholding the conviction and sentences imposed on the first and second accused. The court clarified that Rule 7(3) is directory, and any delay in delivering the Public Analyst's report does not automatically vitiate the prosecution unless the accused can demonstrate prejudice. The court emphasized the importance of the Prevention of Food Adulteration Act's objective to protect public health and prevent adulteration.
-
1992 (9) TMI 379
... ...
... ... ..... gh, JJ. ORDER Appeal dismissed.
-
1992 (9) TMI 378
Issues Involved:
1. Temporary Injunction
2. Non-payment of Rent
3. Doctrine of Promissory Estoppel
4. Calculation of Shed Price
5. Jurisdiction of Civil Court
Issue-wise Detailed Analysis:
1. Temporary Injunction:
The plaintiffs filed applications under Order 39 rules 1 and 2 read with Section 151 of the Civil Procedure Code for a temporary injunction to restrain the defendants from taking any action detrimental to their interests regarding the industrial sheds in their possession and to stay the eviction proceedings initiated by defendant No. 3 before the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The court initially granted interim relief by restraining the Estate Officer from passing any final order of eviction.
2. Non-payment of Rent:
The plaintiffs were allotted industrial sheds under a scheme by the Delhi Administration and Delhi State Industrial Development Corporation Limited (DSIDC) in 1976. They were required to pay monthly rent and other charges as per the agreement. However, the plaintiffs failed to pay the rent as agreed and only paid small sums towards the rentals. The court noted that the plaintiffs did not act according to the letters from DSIDC dated January 23, 1979, and May 1, 1982, which asked them to pay arrears at reduced rates.
3. Doctrine of Promissory Estoppel:
The plaintiffs argued that the agreements were ad hoc and that DSIDC had made a categorical representation to transfer the sheds on a hire purchase basis, which led them to alter their position. The court held that the plaintiffs' conduct did not warrant the application of promissory estoppel as they did not fulfill their obligations under the agreements or the subsequent letters from DSIDC. The court emphasized that the doctrine of promissory estoppel requires one party to alter its position based on the representation of the other, which was not evident in this case.
4. Calculation of Shed Price:
The plaintiffs disputed the price of the sheds offered by DSIDC on a hire purchase basis, arguing that the price should be based on the CPWD rates prevalent in 1975-76. DSIDC offered the sheds at various rates in 1986, 1987, and 1989, which included interest components due to the plaintiffs' failure to make timely payments. The court noted that the plaintiffs did not provide any cogent reasons for not paying the rent as per the agreements or the reduced rates offered in the letters from DSIDC. The court directed the plaintiffs to pay arrears and future rent at the rates mentioned in the letters dated January 23, 1979, and May 1, 1982, with interest at 10% per annum from the date they were put in possession of the sheds.
5. Jurisdiction of Civil Court:
The defendants argued that the premises in question were public premises under the Act and that the jurisdiction of the civil court was barred. The plaintiffs contended that the question of the shed's evaluation could not be decided by the Estate Officer and was beyond the scope of the Act. The court held that the jurisdiction of the civil court was not barred concerning the question of the shed's price.
Conclusion:
The court disposed of the applications, directing the plaintiffs to pay the arrears and future rent at the rates mentioned in the letters dated January 23, 1979, and May 1, 1982, with interest at 10% per annum. The interim orders restraining the Estate Officer from passing any final order of eviction would remain in force if the plaintiffs complied with the payment directions within ten days. The court also held that the jurisdiction of the civil court was not barred concerning the question of the shed's price.
-
1992 (9) TMI 377
Issues: Classification of HDPE Tapes and Sacks
Classification of HDPE Tapes and Sacks:
The judgment dealt with the correct classification of HDPE Tapes and HDPE Sacks manufactured from them. The Department had classified HDPE strips or tapes under Heading 5406.90, while the assessees claimed classification under Heading 3920.32. Similarly, HDPE Sacks were classified under heading 5406.90 instead of the claim under 3922.90 and later under 3926.90. The appeals raised a common question of law and facts regarding the classification of the impugned goods.
Argument of Appellants:
The appellants argued for classification under Chapter 39 as articles of plastics with nil rate of duty. They relied on a detailed chart submitted in the appeals. The appellants contended that the Tribunal's previous ruling in a similar case supported their classification under Chapter 39, citing the judgment of the Hon'ble M.P. High Court in a relevant case.
Argument of Respondent:
The Department argued that HDPE sacks should be classified under Heading 3923.90 based on the ruling of the Hon'ble Madhya Pradesh High Court, contrary to the appellants' claim under Heading 3922.90. The Department emphasized the need to follow the High Court's ruling and Tribunal's decisions in similar matters.
Decision and Analysis:
After considering the arguments and reviewing the relevant rulings, the Tribunal found that the classification under Chapter 39 for the impugned goods was appropriate. The Tribunal referenced the M.P. High Court's judgment and previous Tribunal rulings to support the classification of HDPE strips or tapes under Heading 3920.32 and HDPE sacks under Heading 3923.90. The Tribunal emphasized that the evidence and reasoning presented aligned with the classification under Chapter 39 as articles of plastics.
Outcome and Relief:
Consequently, the appeals were allowed in favor of the appellants, granting them relief subject to the provisions of the Central Excises and Salt Act, 1944. The appellants were entitled to a refund of the amounts deposited, and the lower authorities were directed to process the refund claims and provide consequential relief in accordance with the law. The Tribunal upheld the classification of the impugned goods under Chapter 39, affirming the appellants' claim for nil rate of duty based on the nature of the goods as articles of plastics.
-
1992 (9) TMI 376
Issues Involved: Contempt of Court for failure to comply with tribunal's order faithfully and in letter and spirit.
Background: A petition was filed challenging supersession and denial of promotion. Directions were issued for promotion within specified time frames. Department delayed compliance, leading to contempt proceedings.
Contempt Proceedings: Tribunal found appellants guilty of contempt for delays and lack of faithful compliance. Appellants were sentenced to pay fines for various omissions and commissions related to promotions and compliance with tribunal's orders.
Further Proceedings: Despite implementation within extended time, respondent claimed non-compliance. Tribunal found intentional down-grading of respondent's promotions and failure to convene special DPC for further promotions. Respondent approached Tribunal against appointment to equivalent post.
Judgment: Supreme Court allowed the appeal, setting aside the fine imposed on appellants. Court emphasized the need for wilful conduct as a primary element in contempt cases and clarified that non-compliance with tribunal's orders should be scrutinized, but in this case, the sentence was not justified.
This summary provides a detailed overview of the legal judgment, highlighting the key issues, background, contempt proceedings, further proceedings, and the final judgment by the Supreme Court.
-
1992 (9) TMI 375
Issues Involved:
1. Whether Section 8(3)(a) of the Requisitioning and Acquisition of Immovable Property Act, 1952, is violative of Article 14 of the Constitution of India.
2. The effect of the inclusion of the Act in the 9th Schedule of the Constitution.
Issue-wise Detailed Analysis:
1. Whether Section 8(3)(a) of the Requisitioning and Acquisition of Immovable Property Act, 1952, is violative of Article 14 of the Constitution of India:
The primary contention was that Section 8(3)(a) of the Act is discriminatory as it does not provide for solatium and interest similar to the provisions under the Land Acquisition Act, 1894. The Full Bench of the Punjab and Haryana High Court held that the lack of provision for solatium and interest under the Act was discriminatory and violative of Article 14.
The Supreme Court analyzed several precedents, including the Nagpur Improvement Trust case, which held that different principles of compensation for land acquired for different public purposes or by different authorities could not be justified under Article 14. However, the Court distinguished the present case from those precedents, noting that the requisitioned property was already under the possession and enjoyment of the government, which is a significant factor differentiating it from non-requisitioned property.
The Court emphasized that the absence of solatium in the Act is indicative of legislative intent, stressing the expressions "just and circumstances of each case" in Section 8(1)(a). The term "open market" in Section 8(3)(a) suggests a bargain between a free buyer and a free seller, unfettered by the consideration of requisition and subsequent acquisition.
The Court concluded that the failure to provide solatium and interest under Section 8(3)(a) does not make it discriminatory. Therefore, Section 8(3)(a) is not violative of Article 14.
2. The effect of the inclusion of the Act in the 9th Schedule of the Constitution:
The Act was included in the 9th Schedule of the Constitution with effect from 10th August 1975. The Court referred to the case of Jagannath v. The Authorised Officer, Land Reforms, which held that the inclusion of an Act in the 9th Schedule, read with Article 31B, cures any defects arising from the violation of the provisions of Part III of the Constitution, with retrospective effect.
The Court also considered the case of Waman Rao v. Union of India, which held that Acts included in the 9th Schedule before 24th April 1973 would receive full protection under Article 31B. For Acts included after this date, the protection would only apply if they do not damage or destroy the basic structure of the Constitution.
Since the Court had already determined that Section 8(3)(a) does not violate Article 14, the inclusion of the Act in the 9th Schedule provides it with additional protection, making it immune from challenges based on fundamental rights.
Separate Judgments:
Civil Appeal Nos. 4688-94/89 & 2674-85/89:
The Court dismissed these appeals, applying the principle laid down in Harbans Singh Shanni Devi v. Union of India, where solatium and interest were awarded due to the delay in appointing an Arbitrator.
Civil Appeal No. 995 of 1992:
The Court set aside the enhanced compensation, which was impermissible under the law.
Civil Appeal No. 2073 of 1990:
The Court upheld the original award but set aside the enhanced compensation, considering it illegal.
Civil Appeal Nos. 1320-1322 of 1990:
The Court dismissed these appeals, noting that the impugned judgment had become conclusive and could not be reopened.
Civil Appeal No. 1742-56 of 1986:
The Court dismissed these appeals, considering the long lapse of time since the award was made in 1961.
Conclusion:
The Supreme Court allowed the appeals, setting aside the judgments of the High Court and the award, and remitted the matter to the Arbitrator to determine the award in accordance with the provisions of the Act. The Court held that Section 8(3)(a) is not violative of Article 14 and that the inclusion of the Act in the 9th Schedule provides it with constitutional protection.
-
1992 (9) TMI 374
The Supreme Court granted special leave in a case where a Clerk-cum-Typist's service was terminated by Himachal Pradesh Road Transport Corporation. The High Court initially allowed monetary relief for the period worked but later, the respondent sought further relief for the period not worked. The Supreme Court held that the High Court was not justified in entertaining the belated claim, and the appeal was allowed. The respondent's claim for additional relief was rejected. The dispute regarding monetary relief for the period subsequent to 1.8.1989 was left open for resolution.
-
1992 (9) TMI 373
Issues:
1. Inclusion of advertisement expenses in the assessable value of goods.
2. Limitation period for the recovery of short levied duty.
3. Imposition of penalty under Rule 173Q(1) CE Rules.
Issue 1: Inclusion of advertisement expenses in the assessable value of goods:
The appellants manufactured TV game consoles and video game cartridges availing SSI exemption under Notification No. 175/86-CE. They included expenses on advertisements and publicity of their products in the assessable value. The dispute arose regarding expenses incurred by dealers for the appellants' products not reimbursed by them. The tribunal held that the expenses incurred by dealers, even if not reimbursed, should be included in the assessable value. The tribunal rejected the appellants' contention that the advertisement by dealers was optional, citing a scheme where 50% of local advertisement expenses were reimbursed. The tribunal relied on previous case laws to support its decision, emphasizing that advertisement charges enrich the value of goods and should be part of the assessable value.
Issue 2: Limitation period for the recovery of short levied duty:
The tribunal determined that the demand for duty, which was short levied due to non-inclusion of advertisement expenses, was not barred by limitation. The tribunal found that the appellants' non-disclosure of expenses incurred by dealers on product advertisement amounted to suppression, rejecting the appellants' argument of a bona fide belief. The tribunal highlighted the legal precedent set by the Hon'ble Supreme Court in the Bombay Tyre International case, establishing that advertisement charges form part of the assessable value for excise duty assessment.
Issue 3: Imposition of penalty under Rule 173Q(1) CE Rules:
The tribunal imposed a penalty of &8377; 5,000 under Rule 173Q(1) CE Rules for contravention of Rules 9(1), 173C, and 173F. The penalty was justified based on the findings that the demand for duty was sustainable on merits and not time-barred. The tribunal upheld the impugned order and rejected the appeal, ruling against the appellants on all three issues.
In conclusion, the tribunal upheld the inclusion of advertisement expenses in the assessable value of goods, determined that the recovery of short levied duty was not time-barred, and imposed a penalty under Rule 173Q(1) CE Rules. The judgment favored the tax authorities and ruled against the appellants on all issues raised in the appeal.
-
1992 (9) TMI 372
Issues:
Appeal against conviction under Sections 302/149, 307/149, 325/149, and 379/149 IPC, along with Section 25 of the Arms Act. Evaluation of evidence by the trial court and High Court. Nature of injuries and appropriate conviction under IPC.
Analysis:
The case involved an appeal by 12 appellants against their conviction under various sections of the IPC and the Arms Act. The trial court had acquitted all accused, but the High Court convicted them under Sections 302/149, 307/149, 325/149, and 379/149 IPC. The prosecution's case revolved around a land dispute leading to the fatal beating of the deceased, witnessed by several individuals from the village. The trial court had cited discrepancies in the witnesses' testimonies and lack of reliability. However, the High Court overturned the acquittal, emphasizing the credibility of the eyewitnesses and convicting the appellants based on the prosecution's evidence.
Upon review, the Supreme Court examined the eyewitness accounts and medical evidence. The court found the testimonies of five eyewitnesses consistent and credible, dismissing the trial court's dismissal of their credibility as chance witnesses. The presence of the injured witness, who filed the FIR promptly, further corroborated the events leading to the deceased's death. The court upheld the High Court's decision to convict the appellants based on the reliable eyewitness testimonies, establishing their presence and participation in the crime beyond doubt.
However, the Supreme Court analyzed the nature of injuries inflicted on the deceased. The post-mortem report revealed 28 injuries, with no internal damage or injuries to vital organs that could conclusively cause death. The court concluded that the assault was intended to harm rather than cause death, leading to a modification in the conviction. The appellants were acquitted under Section 302/149 IPC and instead convicted under Section 304 Part II IPC, with a reduced sentence of seven years rigorous imprisonment. The other convictions and sentences by the High Court were upheld, with all sentences to run concurrently. The appeal was partially allowed, modifying the conviction under the appropriate IPC section based on the nature of injuries inflicted during the incident.
-
1992 (9) TMI 371
Issues Involved:
1. Delay in lodging the First Information Report (F.I.R.)
2. Credibility of eye-witnesses
3. Recovery of weapon (gandasi)
4. Motive for the crime
5. Acquittal of co-accused Baldev Singh
6. Consistency of evidence
Detailed Analysis of the Judgment:
1. Delay in Lodging the First Information Report (F.I.R.)
The learned Sessions Judge found the explanation for the delay in lodging the F.I.R. unsatisfactory, noting that it was lodged approximately eight hours after the occurrence, which he deemed belated. However, the High Court disagreed, considering the distance of 10 miles to the Police Station and the time of night. The High Court found no inordinate delay, as the F.I.R. was lodged by 3:00 A.M., and a copy was received by the Taluka Magistrate by 9:00 A.M. the next morning. The Supreme Court concurred with the High Court, finding no inordinate delay under the circumstances.
2. Credibility of Eye-Witnesses
The appellant's counsel argued that the testimonies of the eye-witnesses, Jagir Singh (P.W. 1) and Achhar Singh (P.W. 2), should not be accepted as they were "chance witnesses" and related to the deceased. The learned Sessions Judge noted discrepancies in their testimonies but found them credible regarding the appellant, Lakhwinder Singh. The High Court upheld this view, noting the consistency in their evidence concerning the appellant. The Supreme Court also found the eye-witnesses' testimonies consistent and corroborated by other facts, such as the blood-stained turban and gandasi.
3. Recovery of Weapon (Gandasi)
The prosecution claimed that the appellant, Lakhwinder Singh, disclosed the location of the gandasi, which was recovered from a paddy field and found stained with blood. The appellant's counsel argued that this recovery could be easily maneuvered by the police. However, both the learned Sessions Judge and the High Court found this recovery credible and corroborative of the eye-witnesses' testimonies. The Supreme Court agreed, noting that the appellant could not explain the blood stains on the gandasi and his turban.
4. Motive for the Crime
The prosecution imputed a motive, alleging that the deceased had given up his job in Lakhwinder Singh's concern before the contract period and had not been paid his outstanding wages. The learned Sessions Judge accepted this motive but noted that motive is not an essential ingredient of the offense. The High Court found no reason to disbelieve the motive imputed by the prosecution. The Supreme Court did not find the absence of a motive to raise reasonable doubt about the prosecution's case.
5. Acquittal of Co-Accused Baldev Singh
The learned Sessions Judge acquitted Baldev Singh due to discrepancies in the eye-witnesses' testimonies regarding his complicity. The High Court upheld this acquittal, giving him the benefit of the doubt. The appellant's counsel argued that this acquittal undermined the credibility of the eye-witnesses. However, both the learned Sessions Judge and the High Court found the evidence against Lakhwinder Singh consistent and credible. The Supreme Court agreed, noting that the acquittal of Baldev Singh did not affect the case against Lakhwinder Singh.
6. Consistency of Evidence
Both the learned Sessions Judge and the High Court found the evidence against Lakhwinder Singh consistent and credible. The Supreme Court also found the eye-witnesses' testimonies convincing and corroborated by other established facts, such as the blood-stained gandasi and turban. The Supreme Court noted that the testimonies should not be discarded simply because the eye-witnesses were related to the deceased or had previous disputes with the appellant.
Conclusion:
The Supreme Court upheld the conviction and life imprisonment sentence of Lakhwinder Singh, finding no reason to interfere with the concurrent findings of the learned Sessions Judge and the High Court. The appeal was dismissed, and the appellant was directed to serve out his sentence.
-
1992 (9) TMI 370
Issues:
Challenge to the legality of detention order under COFEPOSA based on delay in passing and executing the order, and discrepancy in the period of acquaintance with a key individual.
Analysis:
1. The appeal was filed challenging the detention order passed against the detenu under COFEPOSA. The detenu was accused of involvement in illegal remittances of foreign exchange. The detention order was challenged on the grounds of unreasonable delay in passing and executing the order, raising doubts about the genuineness of the subjective satisfaction of the detaining authority.
2. The first contention raised was regarding the delay of 6-1/2 months in passing the detention order from the date of recording the detenu's statement, and a further delay of two months in executing the order. The appellant argued that this delay severed the link between the grounds of detention and the purpose of detention. However, the respondent explained the delay by stating that voluminous documents were collected, and statements of bank managers were recorded, justifying the time taken for passing the order.
3. The second contention focused on a discrepancy in the period of acquaintance between the detenu and a key individual mentioned in the detention order. While the grounds of detention stated a two-year acquaintance, the respondent's affidavit mentioned a four-year period of involvement in FERA infractions. The explanation provided clarified that the longer period referred to FERA infractions specifically, not the duration of acquaintance, and did not impact the validity of the order.
4. The court rejected the contentions raised by the appellant, emphasizing that the delay in passing and executing the order was reasonable considering the volume of documents involved. The court also found the discrepancy in the period of acquaintance to be unsubstantiated, upholding the validity of the detention order. The appeal and the related writ petition were dismissed for lacking merit.
-
1992 (9) TMI 369
Issues Involved:
1. Premature Invocation of Criminal Process
2. Computation of Time-Frame under Sections 138 and 142 of the Negotiable Instruments Act
3. Introduction of New Material in Proceedings under Section 482 of the Code of Criminal Procedure
4. Scope of Section 138 of the Negotiable Instruments Act
Detailed Analysis:
1. Premature Invocation of Criminal Process:
The primary issue addressed was whether a complainant can invoke the criminal process alleging an offence under Section 138 of the Negotiable Instruments Act before the prescribed time and whether such an infirmity is curable or fatal to the prosecution. The court held that no offence can be said to have been committed unless and until the period of 15 days as prescribed under sub-clause (c) of Section 138 has elapsed. Therefore, the complaint filed on August 9, 1991, was premature since it was filed before the 15-day period had elapsed from the date of service of the notice (July 29, 1991). Consequently, the Magistrate was in error in taking cognizance of the complaint, rendering the proceedings liable to be quashed.
2. Computation of Time-Frame under Sections 138 and 142 of the Negotiable Instruments Act:
The court examined the correct manner of computing the time-frame prescribed in Sections 138 and 142 of the Negotiable Instruments Act. Section 138(c) requires that the drawer of the cheque must fail to make payment within 15 days of receiving the notice of dishonour. Section 142(b) stipulates that a complaint must be made within one month of the cause of action arising, which is after the 15-day period has elapsed. The court emphasized that the offence is deemed to have been committed only after the 15-day period has expired without payment being made. Therefore, presenting a complaint before this period is premature and invalid.
3. Introduction of New Material in Proceedings under Section 482 of the Code of Criminal Procedure:
The court addressed whether new material could be introduced in proceedings under Section 482 of the Code of Criminal Procedure to amend statements or factual positions. It was held that no new material can be introduced at this stage. The court must be circumscribed by the record that was before the Magistrate at the time of taking cognizance. Consequently, any affidavit or certificate produced later cannot be considered. The court relied on precedents such as State of Bihar v. P. P. Sharma and Smt. Chand Dhawan v. Jawahar Lal to reinforce this principle.
4. Scope of Section 138 of the Negotiable Instruments Act:
The court discussed whether Section 138 should be restricted to cases where the rejection slip reads "insufficiency of funds" or whether it applies broadly to any dishonour of a cheque. The court concluded that Section 138 was intended as a remedy for the widespread practice of issuing dishonoured cheques. The reasons for dishonour, whether it be "refer to drawer," "account closed," or any other reason, are immaterial. The critical factor is the failure to make payment within the stipulated period. The court referred to various judgments to support this view, including decisions from the Kerala High Court, Punjab and Haryana High Court, and Calcutta High Court. The court emphasized that the legislative intent behind Section 138 was to ensure that dishonour of cheques attracts criminal consequences, irrespective of the specific reason for dishonour.
Conclusion:
The court quashed the criminal proceedings against the petitioner, setting aside the Magistrate's order dated August 9, 1991. It was held that the complaint was premature and void in law as it was filed before the expiration of the 15-day period prescribed under Section 138(c) of the Negotiable Instruments Act. The court also reiterated that no new material could be introduced in proceedings under Section 482 of the Code of Criminal Procedure and that the scope of Section 138 encompasses any dishonour of a cheque, not just those due to insufficiency of funds.
-
1992 (9) TMI 368
Issues Involved:
1. Entitlement to bail on the ground of parity.
2. Obligation to disclose previous rejection of co-accused's bail application.
Detailed Analysis:
1. Entitlement to Bail on the Ground of Parity:
The primary issue addressed is whether an accused is entitled to bail on the ground of parity by moving a second or third bail application when a co-accused with a similar role has been granted bail by another judge without disclosing the fact that a similar application had been previously rejected.
The court examined various precedents and principles to determine the validity of granting bail based on parity. The judgment highlights that the principle of parity alone cannot be the sole ground for granting bail. Each case must be examined individually, considering the specific facts and circumstances. The court emphasized the need for consistency in judicial decisions but clarified that consistency should not override the individual assessment of each case.
The court referred to several cases, including:
- Ram Roop v. State of U.P. 1987 UP Crl. Rulings 30: This case observed that if a co-accused with a similar role is granted bail, the applicant should also be granted bail.
- Sobha Ram v. State of U.P. 1992 All Crl. Cases 59: It was observed that it is not obligatory for the counsel of an applicant to indicate that the application of a co-accused had been rejected.
- Sanwal Das Gupta v. State of U.P. 1986 (23) Alld. Crl. Cases 79: The court noted that if bail is granted to a co-accused, the magistrate can admit the co-accused to bail to maintain parity.
- Kesho Ram v. State of Assam AIR 1978 SC 1095: The Supreme Court observed that refusal of bail is not an indirect process of punishing the accused before conviction.
The judgment also discussed the principle of consistency in judicial decisions, as seen in Ashok Kumar v. State of Punjab AIR 1977 SC 109, where the Supreme Court emphasized the need for consistency in sentencing.
The court concluded that while parity is a significant factor, it cannot be the sole ground for granting bail. The court must consider the nature and gravity of the offense, the position and status of the accused, the likelihood of fleeing from justice, repeating the offense, jeopardizing their own life, tampering with witnesses, and the history of the case and its investigation.
2. Obligation to Disclose Previous Rejection of Co-Accused's Bail Application:
The second issue addressed is whether it is necessary for an accused to disclose in their bail application that a co-accused's bail application had been previously rejected.
The court held that it is not necessary for an accused to state in their application that the bail application of a co-accused had been rejected previously. The court reasoned that the prior rejection of a co-accused's bail application does not preclude the court from granting bail to another accused whose case has not been considered at the earlier occasion. The court emphasized that each bail application must be assessed on its own merits and the specific facts presented.
Conclusion:
The court answered the referred questions by stating that parity cannot be the sole ground for granting bail, even at the stage of second or third bail applications. The court must satisfy itself that there are sufficient grounds for releasing the applicant on bail based on more materials, further developments, and different considerations. Additionally, it is not necessary for an accused to disclose in their bail application that a co-accused's bail application had been previously rejected.
The case was sent back to the single bench for the disposal of the bail application with these answers.
........
|
9911796707
