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• 2005 (9) TMI 706
  
  Issues:
  Challenge to adjudication order imposing penalty for contravention of FERA, 1973.
  Reliance on confessional statements and documents as evidence.
  Burden of proof on the department.
  Corroboration of retracted confessional statements.
  
  Analysis:
  1. The appellant challenged an adjudication order imposing a penalty for contravention of FERA, 1973 by making payments to individuals in India under instructions from a person in Dubai without RBI exemption. The appellant denied the charges and requested dropping them, leading to adjudication proceedings and the impugned order.
  
  2. The appellant argued that the Department failed to prove the existence of the person in Dubai, crucial for the contravention under FERA. Citing legal precedents, the burden of proof for the offense under section 9 of FERA lies with the department. In this case, the identity of the person in Dubai was not adequately proven, weakening the Department's case.
  
  3. The appellant contended that the confessional statements were obtained under duress and retracted, lacking independent corroborative evidence. However, the Department relied on these statements and seized documents to establish guilt. The absence of the appellant's name in the statements and the lack of proof for the existence of the person in Dubai were highlighted.
  
  4. The Supreme Court's stance on retracted confessions was referenced, emphasizing the need for voluntary confessions and corroboration from other evidence. The court must ensure the confession's voluntariness and truthfulness before relying on it for conviction. The rule of prudence in observing retracted confessions was underlined, emphasizing the importance of voluntary statements in legal proceedings.
  
  5. The Tribunal found the adjudicating authority's reliance on the retracted confessional statement lacking in due consideration of voluntariness and corroboration requirements. Consequently, the impugned order was set aside, and the appeal was allowed, with the appellant's deposit to be refunded. The judgment emphasized the necessity of proper evaluation of evidence and adherence to legal principles in establishing guilt in such cases.

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• 2005 (9) TMI 705
  
  Issues:
  Challenge to Adjudication Order under FERA for contravention of section 9(1)(d) - Existence of Shri Hameed of Dubai - Burden of proof on department - Reliance on alleged confessional statements - Retraction of statements - Corroboration of confessional statements - Legal principles regarding retracted confessions - Compliance with legal tests by adjudicating authority.
  
  Analysis:
  
  1. The appellant challenged the Adjudication Order under FERA, contesting the penalty imposed for contravention of section 9(1)(d) by making payments to individuals in India under instructions from a person in Dubai, Shri Hameed. The appellant denied the existence of Shri Hameed and questioned the burden of proof on the department to establish the identity of the person outside India giving instructions, citing legal precedents emphasizing the necessity of proving such elements.
  
  2. The appellant responded to the Show Cause Notice (SCN) with a detailed reply refuting the charges and requested the charges to be dropped. Despite the appellant's contentions, adjudication proceedings were conducted leading to the impugned order. The appellant also filed an interim application for dispensation of pre-deposit of penalty, which was partially granted by the Tribunal.
  
  3. During the appeal hearing, arguments were presented by the appellant's advocate and the respondent's representative. The appellant's counsel contended that the impugned order was based on conjecture, questioning the lack of evidence regarding the existence of Shri Hameed. The respondent's representative argued that the non-existence of Shri Hameed did not affect the case's merits, emphasizing the importance of payment instructions from a person outside India for the alleged contravention.
  
  4. The appellant further argued that the alleged confessional statements were obtained under duress and retracted later, thus lacking credibility without independent corroboration. The respondent contended that the adjudicating officer based findings on the recorded statements and seized documents, highlighting the absence of admission of receipt by the alleged recipient and lack of identification of the appellant by the recipient.
  
  5. Legal principles regarding retracted confessions were discussed, citing Supreme Court judgments emphasizing the voluntary nature of confessions and the need for corroboration. The importance of examining the voluntariness and truthfulness of retracted confessions was highlighted, along with the necessity of corroborating such statements with other evidence.
  
  6. The Tribunal found that the adjudicating authority did not adequately consider the voluntariness and reliability of the retracted confessional statements, leading to unsustainable findings. Consequently, the impugned order was set aside, and the appeal was allowed. The respondent was directed to refund the pre-deposit made by the appellant within a specified timeframe.

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• 2005 (9) TMI 704
  
  Issues:
  Challenge of release of US $6000 without confiscation, Delay in filing revision petition, Application of judicial discretion, Non-application of mind in adjudication order, Lack of explanation for delay, Interpretation of reasonable time for filing revision petition, Lack of serious illegality or grave injustice in adjudication order.
  
  Analysis:
  1. The Enforcement Directorate challenged the release of US $6000 to an individual without confiscation, despite penalties imposed for contravention of Foreign Exchange Management Act. The revision petition was filed under section 19(6) of the Act, questioning the delay of 323 days in filing the petition without sufficient explanation for the delay. The issue raised was the exercise of judicial discretion and non-application of mind in the adjudication order, alleging that the order suffered from non-application of mind and lacked appreciation of evidence.
  
  2. The debate centered around the absence of a specific limitation period for filing a revision petition under the Act. The petitioner argued that economic offenses have no limitation, citing a Supreme Court judgment and the legislative scheme. However, the respondent contended that a 45-day limitation under section 19 of the Act should be strictly followed, emphasizing the need for condonation of delay in this case.
  
  3. While the Act does not prescribe a specific time limit for filing a revision petition, it must be done within a reasonable time. The concept of reasonableness was discussed, emphasizing that the delay of about 9 months in this case demonstrated acquiescence or waiver, requiring a sufficient explanation for the delay. The petitioner's argument that a revision petition can be filed at any time was deemed unacceptable, and the necessity of filing within a reasonable period was underscored.
  
  4. The judgment delved into the notion of reasonableness, highlighting that reasonableness varies based on circumstances and must conform to rationality and fairness. The delay of 323 days in filing the revision petition was viewed as a waiver in acquiescence, invoking the principle that the law aids those who are vigilant in asserting their rights. The petitioner's negligent omission in asserting the right was deemed prejudicial to the adverse party, falling under the concept of latches.
  
  5. The judgment referenced the Supreme Court's stance on unreasonable delays even in writ jurisdiction, emphasizing that unexplained delays could indicate indifference and waiver. The petitioner's argument of entitlement to file a revision petition at any time was rejected, and the unexplained delay was viewed as a sign of waiver and acquiescence due to prolonged inaction.
  
  6. Despite the delay, it was noted that delay alone cannot be the sole factor in deciding a case, especially when caused by the state's decision-making process. The absence of serious illegality or grave injustice in the adjudication order was highlighted, indicating that the revision petition lacked merit and should be dismissed. The petitioner's casual approach in filing the petition was a significant factor in the decision to reject the revision petition.
  
  7. In conclusion, the revision petition was dismissed due to the lack of merit, delay, and absence of serious illegality or grave injustice in the adjudication order. The judgment emphasized the importance of filing within a reasonable time and demonstrating the seriousness of the issues raised in the petition.

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• 2005 (9) TMI 703
  
  Issues:
  1. Contravention of sections 9(1)(b) and 9(1)(d) of FERA, 1973 by the appellant.
  2. Existence of Shri Hanif and instructions received from him.
  3. Validity of alleged confessional statements.
  4. Corroboration of confessional statements.
  5. Burden of proof on the department.
  
  Analysis:
  
  1. Contravention of FERA Sections:
  The appeal was against an adjudication order imposing a penalty for contravention of sections 9(1)(b) and 9(1)(d) of FERA, 1973. The appellant was penalized for receiving and making payments without RBI exemption. The appellant contested the charges, leading to adjudication proceedings and the impugned order.
  
  2. Existence of Shri Hanif:
  The appellant argued that the department failed to prove the existence of Shri Hanif, a person from Dubai. The appellant questioned the basis for presuming Hanif's existence solely on a telephone number. Legal precedents were cited to emphasize the importance of proving the identity of the person giving instructions from outside India.
  
  3. Validity of Confessional Statements:
  The appellant claimed that confessional statements were extracted under duress and retracted later, rendering them unreliable. The respondent, however, defended the adjudicating officer's reliance on these statements and documents seized during interrogation. Discrepancies in statements of involved individuals were highlighted.
  
  4. Corroboration of Confessional Statements:
  The judgment referenced the Supreme Court's stance on retracted confessions, emphasizing the need for voluntary and corroborated statements. The court must ensure the absence of coercion or inducement in obtaining confessions. The appellant's argument centered on the lack of proper corroboration for the confessional statements used against them.
  
  5. Burden of Proof:
  Legal principles regarding burden of proof were discussed, emphasizing the department's obligation to establish the elements of the offense under FERA. The lack of concrete evidence proving Hanif's identity as a person residing outside India was highlighted. The judgment concluded that the adjudicating authority failed to meet the necessary standards for relying on the contested confessional statements, leading to the setting aside of the impugned order and allowing the appeal.
  
  This detailed analysis covers the key issues raised in the judgment, providing a comprehensive overview of the legal arguments and precedents cited during the proceedings.

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• 2005 (9) TMI 702
  
  The appeal was against an Adjudication Order imposing a penalty of Rs. 60,000 for not repatriating export proceeds. Despite orders to make a pre-deposit, the appellant failed to comply, citing financial difficulties and family illness. The Tribunal dismissed the appeal due to non-compliance with the order.

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• 2005 (9) TMI 701
  
  Issues Involved:
  1. Legality, propriety, or correctness of the Adjudication Order exonerating the respondents.
  2. Timeliness and justification for the delay in filing the revision petition.
  3. Merits of the case concerning contravention of section 18(2) of the Foreign Exchange Regulation Act, 1973.
  
  Issue-wise Detailed Analysis:
  
  1. Legality, Propriety, or Correctness of the Adjudication Order Exonerating the Respondents:
  The revision petition challenges the Adjudication Order No. SDE(SSB)II/28/2004 dated 25-6-2004, which exonerated the respondents from charges of contravening section 18(2) read with section 18(3) of the Foreign Exchange Regulation Act, 1973. The adjudicating authority found that the respondents took reasonable steps to repatriate export proceeds. The petition argues that the adjudicating authority erred in exonerating the respondents despite the Reserve Bank of India (RBI) declining to accord write-off against the outstanding export proceeds and the pending request for extension or waiver.
  
  2. Timeliness and Justification for the Delay in Filing the Revision Petition:
  The revision petition was filed approximately 9 months after the date of the impugned order. The petitioner argued that under section 19(6) of FEMA, 1999, no limitation period is prescribed for filing a revision petition, thus no explanation for the delay is required. The Tribunal cited a previous order (revision petition No. 95/2002) which stated that there is no time-bar for filing a revision petition. Conversely, the respondents argued that revision powers should be exercised exceptionally and not routinely, and the petition should be filed within a reasonable time. The Tribunal noted that the delay of 9 months indicated waiver and acquiescence, citing the Latin maxim "Vigilantibus et non dormientibus jura subveniunt" (the law helps those who are watchful and do not sleep over their rights).
  
  3. Merits of the Case Concerning Contravention of Section 18(2) of the Foreign Exchange Regulation Act, 1973:
  Section 18(2) of FERA, 1973, stipulates that an exporter cannot do anything or refrain from doing anything which delays or prevents the recovery of export proceeds without RBI's permission. The Tribunal referenced the case of Rajnis International v. Director of Enforcement, noting that if permission from RBI is sought and granted, there is no contravention even if export proceeds are not realized. If permission is not sought or refused, the exporter must prove that all reasonable steps were taken.
  
  In this case, the respondents exported rice to Syria, which was rejected due to quality issues and subsequently sold in Russia through an agent. Part of the payment was received, but the remaining payment was lost due to the collapse of Tory Bank in Russia. The respondents provided evidence of their efforts to recover the proceeds, including obtaining RBI's permission to engage the agent and requesting a write-off after the bank's collapse. The adjudicating authority accepted these efforts as reasonable steps, thus rebutting the presumption of contravention under section 18(3).
  
  The Tribunal concluded that the adjudicating authority had not disregarded any evidence and had exercised judicial discretion appropriately. The revisional jurisdiction does not allow reappreciation of evidence, and the Tribunal cannot set aside the adjudicating authority's decision merely because another view is possible.
  
  Conclusion:
  The revision petition was dismissed due to lack of substance, inordinate delay, acquiescence, and waiver. The Tribunal upheld the adjudicating authority's decision, finding no manifest illegality or gross miscarriage of justice. The Tribunal emphasized that revisional jurisdiction should be exercised sparingly and only in exceptional cases.

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• 2005 (9) TMI 700
  
  Issues Involved:
  1. Contravention of Foreign Exchange Regulation Act, 1973 by the appellants.
  2. Validity of the recovery of foreign currency and admissibility of evidence.
  3. Confessional statements and their retraction.
  4. Denial of cross-examination and principles of natural justice.
  5. Standard of proof in FERA proceedings.
  
  Issue-wise Detailed Analysis:
  
  1. Contravention of Foreign Exchange Regulation Act, 1973:
  The appellants were penalized for contravening sections 8(1), 8(2), and 64(2) of the Foreign Exchange Regulation Act, 1973. The first appellant attempted to sell and the second appellant acquired and sold foreign exchange at rates different from those prescribed by the RBI without any general or special permission. The adjudication order imposed a penalty of Rs. 10,00,000 on each appellant.
  
  2. Validity of the Recovery of Foreign Currency and Admissibility of Evidence:
  Foreign currency was recovered from the first appellant's car, including US dollars, UK pounds, and Canadian dollars. The appellant argued that the recovery was not in accordance with section 34(5) of the Act as witnesses were not from the locality and were not presented for cross-examination. However, the Tribunal held that the irregularity in conducting the search does not invalidate the recovery. The evidence was accepted as valid, citing precedents such as Abdul Sattar v. State of Maharashtra and Kishan Lal v. State of Haryana, which state that non-local witnesses do not render the evidence inadmissible.
  
  3. Confessional Statements and Their Retraction:
  The first appellant made a confessional statement admitting habitual dealings in foreign currency with the second appellant, which was later retracted. The Tribunal noted that officers of the Enforcement Directorate are not considered police officers, and thus confessional statements made to them are admissible, referencing Balkishan A. Devidayal v. State of Maharashtra. The retraction was not found credible as it lacked supporting evidence of duress or threat. The Tribunal cited K.I. Pavunny v. Asstt. Collector, Central Excise Collectorate, Cochin, stating that retracted confessions can be accepted if believed to be true and voluntary.
  
  4. Denial of Cross-examination and Principles of Natural Justice:
  The appellants argued that the denial of cross-examination of witnesses violated principles of natural justice. The Tribunal found no merit in this argument, stating that the demand for cross-examination appeared to be a tactic to delay proceedings. The Tribunal emphasized that the principles of natural justice are flexible and must be applied contextually. It rejected the reliance on judgments such as Central Government v. Fr. Alfred James Fernandez and State of Kerala v. K.T. Shaduli Grocery Dealer, noting that the facts of those cases were distinguishable.
  
  5. Standard of Proof in FERA Proceedings:
  The Tribunal acknowledged that the standard of proof in FERA proceedings is beyond reasonable doubt. However, it concluded that the circumstantial evidence, including the confessional statement, recovery of foreign exchange, and corroborative documents, established the appellants' guilt beyond reasonable doubt. The Tribunal referenced the Calcutta High Court judgment in Adelaide Mande Tobias v. William Albert Tobias, highlighting the sufficiency of strong circumstantial evidence in proving contraventions.
  
  Conclusion:
  The Tribunal dismissed both appeals, affirming the adjudication order and maintaining the penalties imposed. The appellants were directed to deposit the remaining penalty amount within 15 days, failing which recovery would proceed in accordance with the law.

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• 2005 (9) TMI 699
  
  Issues Involved:
  1. Concluded Contract
  2. Reasoning and Evidence in Arbitrator's Award
  3. Risk Purchase and Liability
  4. Execution of the Award
  
  Detailed Analysis:
  
  Issue 1: Concluded Contract
  The primary contention was whether there was a concluded contract between the parties. M/s. Victor Cable Industries Ltd. argued that there was no concluded contract, asserting that the offer made was never accepted, and the exchange of offers amounted to counter-offers. The court noted that the company had submitted their acceptance of the terms as per the letter dated 5.12.89, with the validity period up to 15.2.90, and a purchase order was placed on 30.1.90. Despite subsequent requests for price variation, the company had accepted the additional order of 50 kms on the same terms and conditions. The court concluded that the contract was indeed concluded, as the company had acted with full awareness and submitted the bank guarantee, indicating acceptance of the terms.
  
  Issue 2: Reasoning and Evidence in Arbitrator's Award
  The objections raised by M/s. Victor Cable Industries Ltd. included claims that the arbitrator's award was unreasoned and based on no evidence. The court held that the arbitrator is not expected to write detailed judgments, but the award should have a nexus to the facts of the case. The arbitrator had considered the materials on record and provided sufficient reasoning to grant relief to DESU. The court emphasized that its jurisdiction to interfere with an arbitrator's award on these grounds is very limited, referencing the Supreme Court judgment in M/s. Arosan Enterprises Ltd. v. UOI.
  
  Issue 3: Risk Purchase and Liability
  The arbitrator had directed M/s. Victor Cable Industries Ltd. to pay DESU Rs. 40,07,225/- for the difference in risk purchase, with interest at 18% per annum if not paid within three months. The court upheld this finding, noting that the company had failed to make the requested supplies, leading to the risk purchase. The court found no fault in the arbitrator's decision, as it was based on the evidence and the concluded contract terms.
  
  Issue 4: Execution of the Award
  The court addressed the execution of the awards. Suit No. 1055/94, which involved another arbitration award in favor of M/s. Victor Cable Industries Ltd., had already been made the rule of the court, and objections by DESU were dismissed. Execution No. 200/2000, filed by the company to execute the award dated 6.2.96, was also disposed of. The court directed the parties to settle the accounts in accordance with the decrees and granted one month for payment. In case of default, the parties were allowed to file fresh execution if needed.
  
  Conclusion:
  The court rejected the objections filed by M/s. Victor Cable Industries Ltd., upheld the arbitrator's award dated 29.9.1993, and made it the rule of the court. The court also disposed of Suit No. 1055/94 and Execution No. 200/2000, directing the parties to settle accounts and make payments within one month, with the provision for fresh execution in case of default.

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• 2005 (9) TMI 698
  
  Issues Involved:
  1. Validity of the High Court's decision to grant bail to Amarmani Tripathi and Madhumani Tripathi.
  2. Examination of evidence and material against the accused.
  3. Allegations of tampering with evidence and influencing witnesses by the accused.
  4. Legal principles governing the grant and cancellation of bail.
  
  Detailed Analysis:
  
  Issue 1: Validity of the High Court's Decision to Grant Bail
  The Supreme Court analyzed the High Court's orders granting bail to Amarmani and Madhumani Tripathi. The High Court granted bail to Amarmani on the grounds that the confessional statement of co-accused Rohit Chaturvedi was retracted and inadmissible, and there was insufficient evidence to establish Amarmani's involvement in the conspiracy to murder Madhumita Shukla. For Madhumani, the High Court considered her a secondary conspirator and noted her lack of criminal antecedents, concluding that the material against her was circumstantial.
  
  Issue 2: Examination of Evidence and Material Against the Accused
  The Supreme Court reviewed the prosecution's evidence, which included:
  - The illicit relationship between Amarmani and the deceased.
  - DNA test confirming Amarmani as the father of the fetus.
  - Statements from witnesses indicating threats and attempts to mislead the investigation by Amarmani.
  - Material showing Madhumani's involvement in hiring the killers and her absconding behavior.
  
  The Court emphasized that the High Court failed to consider the substantial evidence indicating a conspiracy involving both accused.
  
  Issue 3: Allegations of Tampering with Evidence and Influencing Witnesses
  The Supreme Court noted several instances where Amarmani attempted to interfere with the investigation:
  - Threats to the deceased's family to avoid implicating him or his wife.
  - Misleading the police by fabricating a marriage between Madhumita and another person.
  - Transferring police officers who did not comply with his demands.
  - Threats and coercion towards witnesses, including attempts to bribe and intimidate them after being granted bail.
  
  The Court found these actions demonstrated a clear intent to tamper with evidence and influence witnesses, necessitating the cancellation of bail.
  
  Issue 4: Legal Principles Governing Grant and Cancellation of Bail
  The Supreme Court reiterated the principles for granting bail, emphasizing the need to consider the nature and gravity of the charge, the evidence against the accused, and the potential for tampering with witnesses. The Court cited several precedents, including *State of Rajasthan v. Balchand* and *Prahlad Singh Bhati v. NCT, Delhi*, to highlight that bail should not be granted if there is a reasonable apprehension of the accused interfering with the judicial process.
  
  The Court criticized the High Court for ignoring the substantial evidence and the accused's conduct, which indicated a high likelihood of tampering with the investigation. The Supreme Court concluded that the High Court's orders granting bail were erroneous and set them aside.
  
  Conclusion
  The Supreme Court set aside the High Court's orders granting bail to Amarmani and Madhumani Tripathi. The Court directed the respondents to surrender immediately and emphasized the importance of considering all relevant material and potential for tampering with evidence when deciding on bail applications. The decision underscores the judiciary's role in ensuring fair trials and preventing interference in the judicial process.

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• 2005 (9) TMI 697
  
  Issues Involved
  
  1. Legality of the termination order in departmental proceedings.
  2. Effect of acquittal in the criminal case on departmental proceedings.
  3. Consideration of the quantum of punishment under Section 11A of the Industrial Disputes Act, 1947.
  4. Judicial review of administrative decisions and the principle of proportionality.
  
  Detailed Analysis
  
  1. Legality of the Termination Order in Departmental Proceedings
  
  The appellant, a Conductor at the Andhra Pradesh State Road Transport Corporation, faced charges of not issuing tickets at the boarding point, failing to collect fare, and not maintaining records properly. The Enquiry Officer found him guilty, and a termination order was issued. The High Court held that the termination was justified, and the Supreme Court affirmed this decision, emphasizing the fiduciary responsibility of conductors and the gross misconduct involved in not collecting the correct fare.
  
  2. Effect of Acquittal in the Criminal Case on Departmental Proceedings
  
  The High Court determined that the acquittal in the criminal case had no bearing on the departmental proceedings. The Supreme Court supported this view, noting that the small amount of discrepancy was inconsequential. The Court cited Karnataka State Road Transport Corporation v. B.S. Hullikatti, which held that misconduct involving fare collection justified removal from service, regardless of the criminal case outcome.
  
  3. Consideration of the Quantum of Punishment under Section 11A of the Industrial Disputes Act, 1947
  
  The appellant argued that the High Court should have applied Section 11A of the Industrial Disputes Act to consider the quantum of punishment, taking into account the minor lapses and small amount involved. However, the Supreme Court referenced precedents such as Regional Manager, RSRTC v. Ghanshyam Sharma and Regional Manager, U.P.S.R.T.C. Etawha v. Hoti Lal, which upheld strict penalties for conductors who caused financial losses to corporations through dishonesty or gross negligence.
  
  4. Judicial Review of Administrative Decisions and the Principle of Proportionality
  
  The Supreme Court discussed the scope of judicial review in administrative decisions, referring to the Wednesbury principles and the principle of proportionality. The Court reiterated that interference with the quantum of punishment is not routine and should be limited to cases where the decision is illogical, procedurally improper, or shocks the conscience of the Court. The Court cited Om Kumar v. Union of India and B.C. Chaturvedi v. Union of India, emphasizing that courts should not substitute their judgment for that of the administrative authority unless the punishment is shockingly disproportionate.
  
  The Court concluded that the High Court's judgment did not suffer from any infirmity and dismissed the appeal without any order as to costs. The principles of judicial review and proportionality were upheld, affirming the disciplinary authority's decision in the appellant's case.

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• 2005 (9) TMI 696
  
  Supreme Court of India allowed exemption, admitted appeal, and did not grant stay in the case (Citation: 2005 (9) TMI 696 - SC). Judges were Mr. Y.K. Sabharwal and Mr. C.K. Thakker.

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• 2005 (9) TMI 695
  
  Issues Involved:
  1. Applicability of the Export and Import Policy (2002-2007) to 100% Export Oriented Units (EOUs).
  2. Validity of retrospective amendments to the policy.
  3. Application of the doctrines of promissory estoppel and legitimate expectation.
  4. Authority of the Central Government to amend the policy in public interest.
  
  Detailed Analysis:
  
  1. Applicability of the Export and Import Policy (2002-2007) to 100% Export Oriented Units (EOUs):
  The petitioner, a company engaged in the manufacture and export of gold jewellery, contended that as a recognized status holder under the Export Import Policy (2002-2007), it was entitled to the benefits mentioned therein, specifically under para 3.7.2.1(vi) of the policy and para 3.2.5 of the Handbook of Procedures. The petitioner argued that the exclusion of export turnover of units operating under the EOU scheme from the calculation of export value was contrary to the policy. However, the court held that the original policy, when properly construed, did not intend to include exports made by EOUs for further duty-free entitlements. The notification dated 28-1-2004 clarified that exports made by EOUs would not be considered in calculating the total value of exports, as EOUs were already entitled to 100% duty-free imports under Chapter VI of the policy.
  
  2. Validity of Retrospective Amendments to the Policy:
  The petitioner challenged the retrospective application of the notification excluding EOUs from the calculation of export value. The court noted that clarifications to a policy are inherently retrospective as they elucidate the original intent of the policy. The court found that the notification dated 28-1-2004 was a clarification rather than an amendment and thus applied retrospectively to the original date of the policy. The court dismissed the challenge to the retrospective application, stating that the clarification did not alter the structure of the original policy.
  
  3. Application of the Doctrines of Promissory Estoppel and Legitimate Expectation:
  The petitioner argued that it had altered its position based on the policy and thus the doctrines of promissory estoppel and legitimate expectation should apply. The court held that the doctrines of promissory estoppel and legitimate expectation do not apply when the government is empowered to amend the policy in public interest. The court emphasized that these doctrines cannot be invoked in the abstract and must be supported by clear, sound, and positive foundation. Mere assertions without supporting material were insufficient to invoke these doctrines. The court found no evidence of the petitioner altering its position to its detriment based on the policy.
  
  4. Authority of the Central Government to Amend the Policy in Public Interest:
  The court affirmed the Central Government's authority to amend the policy in public interest under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992. The policy itself reserved the right for the government to make amendments in public interest. The court noted that economic policies are subject to change based on the exigencies of the situation and the necessity. The court found that the amendments were made in public interest to prevent misuse of the scheme and thus were valid.
  
  Conclusion:
  The court dismissed the writ petitions, upholding the validity of the notifications and amendments to the Export and Import Policy (2002-2007). The court found that the clarifications and amendments were made in public interest and within the authority of the Central Government. The doctrines of promissory estoppel and legitimate expectation were not applicable in this case due to the lack of supporting evidence and the government's power to amend the policy.

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• 2005 (9) TMI 694
  

  Murder - Offence u/s 302 r/w Section 34 - Challenged the Order passed for Grant Of Bail - HELD THAT:- We agree with the submission urged before us that the directions contained in the aforesaid judgment of the High Court are only in the nature of guidelines and the High Court should not be understood to have laid down an invariable rule to be observed with mathematical precision. In fact in the very first paragraph of the judgment the learned Judges observed that they were making "an attempt to frame certain guidelines" for the grant of bail. Difficulties may arise if such a direction is treated as an invariable rule in the matter of grant of discretionary relief.

  The rule laid down in Dharampal's case may be inferentially understood to mean that unless a convict has undergone five years imprisonment, he should not be released on bail. This would again lead to travesty of justice, because in a given case having regard to the evidence on record and the reasoning of the Court convicting the accused, the High Court in an appeal may well be persuaded and justified in granting bail to the appellant even while admitting his appeal.

  We, therefore, hold that the High Court of Punjab and Haryana in Dharampal's case laid down guidelines which ought to be kept in mind by Courts dealing with applications for grant of bail in a pending appeal. It does not lay down any hard and fast rule of universal application. As we have observed earlier, it would be futile to lay down any strait jacket formula in such matters.

  So far as the instant appeal is concerned by our order dated May 12, 2005 we have granted bail to the appellant who had remained in custody for about six years and four months. Apart from the facts and circumstances of the case, we also notice the fact that the co-accused had been released on bail by the High Court.

  The interim order made on May 5, 2005 is made absolute. This appeal stands disposed of in the above terms.

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• 2005 (9) TMI 693
  
  Issues:
  1. Validity of the sanction order for prosecution under the Prevention of Corruption Act, 1988.
  2. Competency of the authority issuing the sanction order.
  3. Retrospective sanction order and its implications on the case.
  4. Jurisdictional validity of the cognizance taken by the Special Judge.
  
  Analysis:
  
  Issue 1: Validity of the sanction order for prosecution under the Prevention of Corruption Act, 1988
  The case involved a challenge to the sanction order for prosecution under the Prevention of Corruption Act, 1988. The respondent, a public servant, faced charges of demanding and accepting illegal gratification. The prosecution filed a charge-sheet under relevant sections of the Act. The primary contention was the validity of the sanction order granted by the Company Secretary, as required under Section 19 of the Act. The Court analyzed the provisions of the Act and emphasized the necessity of prior sanction for prosecution in cases involving public servants. The absence of a valid sanction order was deemed to invalidate the cognizance taken by the Special Judge.
  
  Issue 2: Competency of the authority issuing the sanction order
  The Court scrutinized the authority competent to issue the sanction order for prosecution. It was established that the Company Secretary, who issued the initial sanction order, was not the competent authority under the relevant rules. Subsequently, another sanction order was issued retrospectively by the Chairman and Managing Director, also not the competent authority as per the rules. The lack of reference to any resolution by the Board of Directors authorizing the sanction orders raised concerns about the validity of the orders.
  
  Issue 3: Retrospective sanction order and its implications on the case
  The retrospective nature of the second sanction order, granted after cognizance was taken, was highlighted as a procedural irregularity. The Court emphasized that such retrospective sanction, apart from being issued by an incompetent authority, was legally flawed. The retrospective effect from a date prior to the cognizance being taken further complicated the procedural validity of the prosecution.
  
  Issue 4: Jurisdictional validity of the cognizance taken by the Special Judge
  The Court concluded that the absence of a valid sanction order at the time of taking cognizance rendered the subsequent proceedings without jurisdiction. Emphasizing the fundamental requirement of prior sanction for prosecution of public servants under the Act, the Court declared the cognizance taken by the Special Judge as invalid. Consequently, the Court directed the competent authority to issue a fresh sanction order and proceed lawfully from the stage of taking cognizance against the respondent.
  
  In conclusion, the appeal was disposed of with a directive to restart the proceedings with a valid sanction order in accordance with the law, emphasizing the importance of adhering to procedural requirements in cases involving public servants under the Prevention of Corruption Act, 1988.

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• 2005 (9) TMI 692
  
  Issues Involved:
  1. Whether the learned Special Judge erred in refusing to take cognizance against A-2 for abetment under Section 109 IPC read with Section 13(1)(e) and 13(2) of the Prevention of Corruption Act.
  2. Whether the evidence provided was sufficient to establish prima facie abetment by A-2.
  3. Interpretation of abetment in the context of possession of disproportionate assets.
  
  Detailed Analysis:
  
  Issue 1: Cognizance Against A-2
  The revision case was filed by the CBI challenging the order of the Special Judge for CBI Cases, Hyderabad, which refused to take cognizance against A-2, the wife of A-1, an Income Tax Officer, under Section 109 IPC read with Section 13(1)(e) and 13(2) of the Prevention of Corruption Act. The Special Judge had taken cognizance against A-1 for possessing disproportionate assets but found no prima facie evidence against A-2 for abetment.
  
  Issue 2: Sufficiency of Evidence for Abetment
  The charge-sheet indicated that A-2, a housewife, abetted A-1 by aiding him to conceal ill-gotten wealth in her name and that of their children. The prosecution argued that allowing the property to be kept in her name constituted abetment. The court referenced the Supreme Court judgment in P. Nallammal v. State, which held that even private persons could abet an offense under Section 13(1)(e) of the Prevention of Corruption Act.
  
  Issue 3: Interpretation of Abetment
  The court examined Section 107 IPC, which defines abetment as instigating, engaging in conspiracy, or intentionally aiding the commission of an offense. The court noted that the very fact of the wealth being kept in A-2's name, with her knowledge, constituted prima facie proof of abetment. The court referenced the Supreme Court's illustrations in P. Nallammal's case, which demonstrated various scenarios of abetment, including a public servant asking a close friend to hold ill-gotten wealth in their name.
  
  The court also cited Goura Venkata Reddy v. State of A.P., which elaborated on the nature of abetment, emphasizing that intentional aiding and active complicity are essential elements. The court observed that possession of disproportionate assets is an offense, and allowing such assets to be kept in one's name amounts to facilitating the possession, thus constituting abetment.
  
  The court further referenced Ranganayaki v. State, which discussed the difficulty in proving the mental disposition of the accused and the importance of circumstantial evidence in establishing motive and abetment. The court concluded that the act of allowing the property to be kept in A-2's name, given the relationship between husband and wife, automatically amounted to abetment.
  
  Conclusion:
  The court held that the Special Judge erred in discharging A-2 from the accusation of abetment. The revision case was allowed, and the lower court was directed to register the case against A-1 under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act and take cognizance against A-2 for abetment under Section 109 IPC read with Section 13(2) and 13(1)(e) of the Prevention of Corruption Act.

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• 2005 (9) TMI 691
  
  Issues Involved:
  1. Legitimacy of a complaint filed by a power of attorney holder under Section 138 of the Negotiable Instruments Act (N.I. Act).
  2. Authority of the power of attorney holder to verify the complaint on behalf of the payee.
  3. Applicability of Section 142 of the N.I. Act concerning the filing and verification of complaints.
  
  Issue-wise Detailed Analysis:
  
  1. Legitimacy of a Complaint Filed by a Power of Attorney Holder:
  
  The primary issue was whether a complaint under Section 138 of the N.I. Act could be filed by a power of attorney holder on behalf of the payee. The court noted that Section 142 of the N.I. Act prescribes that the complaint must be in writing and filed by the payee or holder in due course. However, the court clarified that this does not necessitate the complaint being filed "personally" by the payee. The court referenced the Kerala High Court's ruling in Hamsa v. Ibrahim and the Supreme Court's decision in Ravulu Subbarao v. Commissioner of Income Tax, which established that a power of attorney holder can file a complaint if duly authorized. The court concluded that the power of attorney holder, in this case, was authorized to file the complaint, aligning with the established legal position that a power of attorney can act on behalf of the principal.
  
  2. Authority of the Power of Attorney Holder to Verify the Complaint:
  
  The court addressed whether the power of attorney holder could verify the complaint on behalf of the payee. Citing various precedents, including the Supreme Court's decision in Janki Vashdeo Bhojwani and Ors. v. Indusind Bank Ltd. and Ors., the court emphasized that while a power of attorney holder can file a complaint, they cannot depose on behalf of the complainant. However, they can appear as a witness if they have personal knowledge of the transaction. The court noted that the power of attorney holder in this case had full knowledge of the transaction and was involved from the beginning, justifying the Magistrate's decision to record their statement for verification purposes.
  
  3. Applicability of Section 142 of the N.I. Act:
  
  Section 142 of the N.I. Act outlines the specific procedure for taking cognizance of an offense under Section 138. The court reiterated that the complaint must be in writing and filed by the payee or holder in due course within one month of the cause of action arising. The court highlighted that the N.I. Act, being a special law, overrides the general provisions of the Code of Criminal Procedure (Cr. P.C.) in this context. The court referenced various judgments, including those of the Andhra Pradesh High Court and the Supreme Court, to establish that the procedural requirements under Section 142 do not preclude a power of attorney holder from filing a complaint, provided they are duly authorized.
  
  Conclusion:
  
  The court dismissed the petition, upholding the Magistrate's decision to issue process against the petitioners under Section 138 of the N.I. Act. The court found that the power of attorney holder was duly authorized to file and verify the complaint, and the procedural requirements under Section 142 were met. The court concluded that no fault could be found with the impugned order, and the petitioners' contentions were not sustainable. The petition was dismissed, and the rule was discharged, with each party bearing their own costs.

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• 2005 (9) TMI 690
  
  Issues:
  Recovery of a substantial sum jointly and severally from defendants, Application under Section 8 of the Arbitration and Conciliation Act 1996, Application under Order 12 Rule 6 of the Code of Civil Procedure for judgment on admissions.
  
  Recovery of Sum and Dispute Resolution:
  The plaintiff filed a suit to recover a substantial amount jointly and severally from the defendants, based on a Memorandum of Understanding. The defendants failed to develop the properties as agreed and were to refund the paid amount with interest. An application under Section 8 of the Arbitration Act was rejected by the Trial Judge, leading to a challenge in the High Court and later the Apex Court, which dismissed the special leave petition. The plaintiff then filed an application under Order 12 Rule 6 seeking a judgment on admissions, which was disputed by the respondents. The Trial Judge rejected the application, leading to the present proceedings.
  
  Arguments and Legal Analysis - Judgment on Admissions:
  The petitioner argued that certain confirmation letters admitted the liability of the respondents to pay a specific amount. However, the respondents contended that disputed documents cannot form the basis for a decree under Order 12 Rule 6. The Court examined the legal provision and precedents, emphasizing that admissions must be absolute and capable of standing independently. The Court cited relevant case laws to support the position that decrees cannot be granted on disputed documents without giving the contesting parties an opportunity to explain.
  
  Court's Decision and Conclusion:
  The Court analyzed the arguments presented by both parties and concluded that the disputed nature of the documents prevented the granting of a decree under Order 12 Rule 6. The Court highlighted the importance of allowing respondents to explain contested documents during trial rather than at the application stage. The judgment emphasized the need for absolute admissions to support a partial decree. Consequently, the Court upheld the Trial Judge's decision to reject the application, finding no merit in the petitioner's petition. The petitioner was granted the liberty to prove the authenticity of the documents during the trial, with instructions for expedited trial proceedings.
  
  This detailed analysis of the legal judgment highlights the key issues, arguments presented by both parties, legal interpretations, and the Court's final decision regarding the application for judgment on admissions under Order 12 Rule 6 of the Code of Civil Procedure.

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• 2005 (9) TMI 689
  
  Issues Involved:
  1. Maintainability of the suit for mandatory injunction and prohibitory injunction.
  2. Legal status of the defendants post the expiry of the license.
  3. Reasonableness of the delay in filing the suit.
  4. Requirement of formulating substantial questions of law in a second appeal.
  
  Detailed Analysis:
  
  1. Maintainability of the Suit for Mandatory Injunction and Prohibitory Injunction:
  The appellants challenged the legality of the Kerala High Court's judgment, which held that their suit for mandatory and prohibitory injunction was not maintainable. The High Court ruled that the appropriate remedy for the appellants was to file a suit for recovery of possession rather than an injunction since the respondents were considered trespassers after the license expired. The High Court emphasized that injunction is an equitable remedy, while recovery of possession is a legal remedy.
  
  2. Legal Status of the Defendants Post the Expiry of the License:
  The trial court and the First Appellate Court found that the defendants became trespassers upon the death of Mathew, the original licensee, and the expiry of the license. The High Court, however, noted that the occupation of an ex-licensee does not automatically become hostile or trespasser-like immediately after the license ends. The High Court held that for a suit for mandatory injunction to be maintainable, it must be filed promptly and without delay.
  
  3. Reasonableness of the Delay in Filing the Suit:
  The High Court found that there was an unexplained delay in filing the suit, which was initiated 19 months after the death of the original licensee. The appellants argued that they allowed time for the defendants to wind up their business to avoid inconvenience. However, the High Court deemed this delay unreasonable. The Supreme Court, while considering the appeal, emphasized that the concept of "reasonable time" depends on the circumstances of each case. The Court referred to the explanation of "reasonable time" as provided in legal dictionaries and previous judgments, noting that it should be as soon as circumstances permit and necessary under the circumstances.
  
  4. Requirement of Formulating Substantial Questions of Law in a Second Appeal:
  The Supreme Court noted that the High Court failed to formulate any substantial question of law while reversing the findings of the trial court and the first appellate court, which is a mandatory requirement under Sub-section (4) of Section 100 of the Code of Civil Procedure, 1908. The Supreme Court found this omission significant and contrary to legal mandates.
  
  Conclusion:
  The Supreme Court concluded that the High Court's judgment was unsustainable. The explanation for the delay provided by the plaintiffs was found plausible, and the defendants had not specifically raised the issue of unreasonable delay before the trial court or the first appellate court. The Supreme Court held that the question of reasonable time required factual adjudication and could not be raised for the first time in a second appeal.
  
  The Supreme Court set aside the High Court's judgment and allowed the appeal without any order as to costs. The judgment emphasized the importance of filing suits with promptitude and the need for courts to adhere to procedural requirements, such as formulating substantial questions of law in second appeals.

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• 2005 (9) TMI 688
  
  Supreme Court of India allowed filing additional documents within four weeks in the case, and the appeal was admitted. (2005 (9) TMI 688 - SC)

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• 2005 (9) TMI 687
  
  Issues:
  1. Classification of the appellant as a Management Consultant for tax purposes based on the sale of software.
  2. Interpretation of essential ingredients for inclusion as a Management Consultant.
  3. Exemption under Notification No. 15/2004-Service Tax for Enterprise Resource Planning software system.
  4. Validity of the Order-in-Original versus the Review Order.
  
  Analysis:
  1. The appeal addressed the classification of the appellant as a Management Consultant under Section 65(13) of the Finance Act, 1994, based on the sale of software. The Assistant Commissioner accepted the appellant's plea that they were not a Consulting Engineer but a Management Consultant. The appellant argued that the mere sale of software does not constitute Management Consultancy services. The Commissioner's order lacked reasoning and findings, leading the Tribunal to remand the matter for reconsideration, emphasizing the need for detailed examination of the appellant's contentions.
  
  2. The Tribunal analyzed the essential ingredients for inclusion as a Management Consultant, highlighting that the person must be engaged in providing services related to the management of an organization. The appellant contended that their activities did not meet these criteria as they were solely selling software, not providing consultancy services. The Tribunal found merit in the appellant's argument, emphasizing the importance of a detailed assessment in determining the appellant's classification.
  
  3. The appellant cited Notification No. 15/2004-Service Tax, which granted exemption for Enterprise Resource Planning software systems supplied by Management Consultants. However, the period in question predated the notification, leading to a debate on the applicability of service tax. The Tribunal acknowledged the notification but directed the Commissioner to thoroughly examine all aspects, including the exemption claim, during the reconsideration process.
  
  4. The Tribunal compared the Order-in-Original, which provided detailed reasoning for dropping the proceedings, with the Review Order, which lacked findings and was deemed a non-speaking order. The appellant argued that the Assistant Commissioner's order was comprehensive and justified, contrasting it with the Commissioner's order, which lacked detailed analysis. The Tribunal instructed the Commissioner to address all points raised by the appellant and provide a thorough decision within four months, allowing the appellant to contest the appeal effectively.

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