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Showing 1 to 20 of 677 Records
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2007 (2) TMI 725 - DELHI HIGH COURT
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... ... ..... rriage with her perhaps she thought that she should use Sections 498A and 406 against the family members to teach a lesson to everybody. The Court cannot be swayed by the feelings of hatred of the complainant. Even at the time of framing charges the Court has to consider the entire evidence collected by the I.O. or deliberately left out by the I.O. Criminal trial impinges on the liberty of a person and must not be taken casually. 5. I consider that the order of the learned Additional Sessions Judge where she observed that the material relied upon the accused and not made part of charge-sheet of the Trial Court, cannot be considered, is liable to be set aside. 6. I, Therefore, hereby set aside the order of the Metropolitan Magistrate framing charges against the petitioner and the order of Additional Sessions Judge dated 22.7.2006 dismissing the revision. The petitioner is discharged from the charges framed against her under Section 406 IPC. The petition is accordingly allowed.
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2007 (2) TMI 724 - SUPREME COURT
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... ... ..... er to remit the matter to the trial Court for fresh adjudication. Since the matter is pending the trial Court shall dispose of the matter within three months from the date of receipt of our order. 6. It is also proper that the appellants should pay cost to the respondent. Even if the reason for non-appearance is accepted to be correct, the plaintiff was certainly prejudiced. Merely because the learned Counsel appearing for the defendants did not take proper care and caution that cannot be a ground to loose sight of the prejudice caused to the plaintiff-respondent. The same has to be meted out by costs which we fix at Rs. 20,000/-. The amount shall be paid within 10 days from today. A receipt shall be filed before the trial Court immediately thereafter so that our directions for disposal within three months can be duly complied with. 7. Parties are permitted to place copy of our order before the trial Court so that necessary directions can be issued. The appeal is disposed of.
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2007 (2) TMI 723 - KERALA HIGH COURT
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... ... ..... P.C. where there has been a post revision composition of the offence by the victim/complainant, the jurisdiction under Section 482 Cr.P.C. (and of course Article 226/227 of the Constitution) is in law available with the High Court and in a fit case such powers can and ought to be invoked. The cases on hand are eminently fit cases where such jurisdiction can and ought to be invoked, I conclude. 33. In the result, W.P.(C) 34540 OF 2006 and Crl.M.C. 259 of 2007 are allowed. It is directed that the sentences imposed on the petitioners shall not be executed on condition that the petitioners deposit an amount of Rs.2,000/- each before the learned Magistrates concerned within a period of 45 days from this date. In default of payment of the said amount of Rs.2,000/- each, they shall undergo the default sentences approved in the respective orders in revision. 34. Crl.M.A.No. 8626 of 2006 in Crl.R.P.No. 7 of 2004 is dismissed as unnecessary in view of the order in Crl.M.C. 259 of 2007.
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2007 (2) TMI 722 - SUPREME COURT
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... ... ..... d finding was perverse. The reasonings of the learned Trial Judge had not been met by the High Court. Nothing has been stated as to why the findings of the learned Trial Judge were not probable. 15. Having considered the entire fact situation obtaining in the present case, we are of the opinion that the defence case cannot said to be wholly improbable one. If it was probable, the findings of the learned Trial Judge could not have been thrown out without meeting the reasonings therefore. The High Court, therefore, in our opinion was not correct in interfering with the said Judgment. It is now well settled when two views are possible, the High Court while exercising its appellate power against a judgment of acquittal, shall not ordinarily interfere therewith. See V. Venkata Subbarao v. State represented by Inspector of Police, A.P. 2007CriLJ754 . 16. For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed.
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2007 (2) TMI 721 - SUPREME COURT
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... ... ..... is not available to the Wakif or the Mutwalli since the wakf was created in 1926 and was registered under Section 38 of the 1936 Act and was also notified in the Official Gazette in January 1954. It was only thereafter in 1958, that is, after 32 years that the Wakif filed a collusive suit which was decreed on compromise. The Wakif did not, however, question the registration of the wakf under the provisions of the 1936 Act, nor did he challenge the gazette notification published in January, 1954. 8. Lastly, we do not also find any force in the submission that since the revenue records were altered to show the properties to be the secular properties of the appellant, the wakf character of the properties had been obliterated. The law is well settled that once a wakf is created it continues to retain such character which cannot be extinguished by any act of the Mutwalli or anyone claiming through him. 9. The appeal, therefore, fails and is dismissed without any order as to costs.
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2007 (2) TMI 720 - SUPREME COURT
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... ... ..... he pledgor and wrongful gain to the Bank, there can be no question but that the Managing Director has necessarily mens rea required by Section 405. 363. The term entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general signification all it imports is the handing over possession for some purpose which may not imply the conferring of any proprietary right at all. 364. When a person misappropriates to his own use the property that does not belong to him, the misappropriation is dishonest even though there was an intention to restore it at some future point of time. 18. We, therefore, are clearly of the opinion that the view taken by the High Court was correct. The High Court's judgment is upheld. The appeal is dismissed. We, in the facts and circumstances of this case, also direct the appellant to pay and bear the cost of the respondent throughout. Counsel's fee in this appeal is assessed at Rs. 50,000/-.
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2007 (2) TMI 719 - BOMBAY HIGH COURT
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... ... ..... the petitioner and the learned counsel for the respondents. 2. Rule. 3. There shall be an interim relief in terms of prayer clause (d). 4. The learned counsel for the respondents waives service.
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2007 (2) TMI 718 - DELHI HIGH COURT
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... ... ..... e vicinity; neither the raiding party, nor the police thought it appropriate to investigate the matter further. No witness identified the petitioner, as the culprit. In the absence of any direct evidence, it was incumbent upon the prosecution to lead strong circumstantial evidence to show the petitioner's guilt; such evidence, too, was lacking. The inevitable conclusion Therefore, is that the prosecution failed to prove its allegations. The findings of the courts, that the petitioner had indulged in theft, and was guilty, are in complete variance with the evidence. This has led to manifest failure of justice, warranting exercise of revisional jurisdiction. 15. In view of the above discussion, and conclusions, I am of the opinion that this petition has to succeed; it is accordingly allowed. The impugned order, and the judgment of the trial court, convicting the petitioner, and imposing the sentence upon him, are hereby set aside. The petition is allowed in the above terms.
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2007 (2) TMI 717 - SUPREME COURT
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... ... ..... with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant." 11. Applying these principle to the instant case, it is patent that one of the partners of the firm which was the original tenant has continued in legal possession of the premises as a partner of another firm constituted after dissolution of the original firm. Thus the legal possession is retained by a partner who was one of the original tenants. In these circumstances, we find no fault with the finding of the High Court there was no sub-letting of the premises and hence the suit for eviction deserved to be dismissed. 12. There is not merit in these appeals and the same are accordingly dismissed.
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2007 (2) TMI 716 - GUJARAT HIGH COURT
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... ... ..... ed in held that once the accused under Section 139 of N.I. Act shows that the cheque in question had in fact not been issued for any legally enforceable liability or debt then the burden shifts on to the complainant to prove the contrary. Thus in view of this the acquittal of the accused impugned in this appeal cannot be said to be so perverse as to result into miscarriage of justice warranting any interference under Section 378 of the Code. 31. In the result, this Court is of the considered view that the complainant could not establish his case against the accused so as to bring home guilt on their part. On the basis of the facts & circumstances and evidence on record, it would not be safe for this Court to reverse the order of acquittal and fasten the accused / present respondents No. 2 to 5 with the criminal liability so as to punish them under Section 138 of the Negotiable Instrument Act, 1881. The appeal therefore, deserves to be dismissed, and dismissed accordingly.
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2007 (2) TMI 715 - BOMBAY HIGH COURT
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... ... ..... y Court, Aurangabad, below Exhibits 44 and 45, in Petition No. B-2 of 2005, rejecting application for framing additional issue and dismissing the petition in default, respectively, are quashed and set aside. It is needless to state that the amendment which was granted earlier shall stand restored. The application of the present petitioner for framing additional issue stands allowed. The order of dismissal of petition in default stands quashed and set aside. The Petition No.. B-2 of 2005 is restored to the file of the Family Court, Aurangabad. However, it is made clear that hereafter, the parties shall not seek adjournments on unnecessary counts and shall co-operate with the learned Family Court in expeditious disposal of the petition. The parties are directed to present themselves before the learned Family Court on 15th February 2007 and thereafter the learned Family Court shall proceed with the petition. 10. Rule is made absolute in the above terms with no order as to costs.
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2007 (2) TMI 714 - DELHI HIGH COURT
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... ... ..... ent application and appoint Mr. K. C. Lohia, retired District Judge, Delhi as the sole arbitrator to adjudicate upon the claims and counter-claims of the parties. The fee of the sole arbitrator is fixed at ₹ 50,000/- apart from out of pocket expenses, to be shared between the parties equally. 35. The petitioner is directed to file its statement of claim before the sole arbitrator by 15-04-07. The respondent would file its reply and counter-claim, if any, by 15-05-07. The petitioner may file its rejoinder and reply to the counter-claim by 16-06-07. The parties should also file their respective original documents along with their pleadings and conduct the admission/denial of documents by exchange of correspondence by 23-06-07. The parties are directed to appear before the arbitrator on 02-07-07 at 4 P.M. in his office. The learned Arbitrator should try and conclude the arbitration within six months of 02-07-2007. A copy of this order may be sent to the learned Arbitrator.
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2007 (2) TMI 713 - SUPREME COURT
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... ... ..... nts must be made in the complaint petition. The question which, therefore, in our opinion, arises for consideration, is whether in absence of any averments in the complaint petition, that the accused had a role to play in the matter of such endorsement; the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa’s case (supra). We are of the opinion that the Division Bench having not considered that aspect of the matter, the same cannot be said to be an authoritative pronouncement on the said question; as even in such a case, the Court shall have to proceed to try the accused for commission of an offence under Section 138 of the Negotiable Instruments Act; although, on the face of the complaint petition, no offence can be said to have been made out. We, therefore, are of the opinion that the matter should be considered by a larger Bench. Let the matter be placed before Hon’ble the Chief Justice of India for appropriate orders.
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2007 (2) TMI 712 - SUPREME COURT
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... ... ..... as repeatedly held that the decree can be passed and the sanction can be obtained for transfer of immovable property and the decree in such would be in the way the High Court has directed. (See Motilal Jain v. Ramsai Devi (Smt.) and Ors. AIR2000SC2408 , Nirmala Anand v. Advent Corporation (P) Ltd. and Ors. AIR2002SC2290 , Aniglase Yohanna v. Ramlatha and Ors. AIR2005SC3503 ). 11. Above being the position we find no merit in this appeal. However, considering the long passage of time it was suggested to respondent No. 1 that he could pay an additional sum to the appellant. Learned Counsel for the respondent left the quantum to be decided by this Court. To a similar effect was the suggestion of learned Counsel for the appellant. Considering the background facts, we direct that as a matter of good gesture, let the respondent pay a sum of rupees five lakhs to the appellant within a period of four months from today. 12. The appeal is dismissed subject to the aforesaid observations.
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2007 (2) TMI 711 - SUPREME COURT
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... ... ..... rit petitioners should also be given the same benefits. However, if that was not done then the subsidy should be 25% of the cost of film processing in the lab (subject to a maximum of ₹ 10 lacs) and not the entire cost of the film production. It is well settled that a relevant factor for interpretation if there is some ambiguity in a circular is how the circular has been understood by the department itself which issued it. This is particularly so when there are two interpretations possible, as is in the present case. 9. In these circumstances, we set aside the impugned judgment and remand the matter to the High Court for a fresh consideration after calling for the relevant material in order to understand how Clause 23.3 of the Film Policy was understood by the department itself and what subsidies have been given to other film producers. 10. For the reasons given above, we allow the appeal, set aside the impugned judgment and remand the matter to the High Court. No cost.
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2007 (2) TMI 710 - SUPREME COURT
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... ... ..... s son has been denied employment. On the peculiar facts, we do not find it appropriate to interfere with the direction given by the High Court to appoint the first respondent, though for different reasons. 16. We have upheld the direction for grant of employment only because of the acceptance of an inter-linked conditional offer. Where the offer to voluntarily retire and request for compassionate appointment are not inter- linked or conditional, FCI would be justified in considering and deciding each request independently, even if both requests are made in the same letter or application. Be that as it may. 17. In view of the above, the appeal is dismissed. But neither the retired employee nor his son will, however, be entitled to claim any monetary or other benefits on the ground of delay in issuing the offer of appointment. The appellant is given two months' time from today to appoint first respondent as per High Court's order. Parties to bear their respective costs.
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2007 (2) TMI 709 - ITAT, MUMBAI
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... ... ..... ether determined by the court or under a consent decree within the ambit of Section 2(12) of the Code of Civil Procedure, 1908. (3) There is a difference of opinion amongst various High Courts on the issue relating to nature and character of the mesne profits. Therefore, following various judgements of the Hon'ble Supreme Court mentioned in Paragraph No. 48, it is held that the mesne profits constitute capital receipt not chargeable to tax. 66. Before parting with this order, it may be mentioned that the learned Counsel for the assessee has also taken an additional plea to the effect that the arrangement between the parties was in the nature of family settlement not involving accrual of any income in the hands of any of the parties. Since the assessee succeeds on the major ground raised by it, it is not necessary for us to adjudicate upon such plea of the assessee's counsel. In the result, the appeal of the assessee is allowed. Order pronounced on 20th February, 2008.
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2007 (2) TMI 708 - ANDHRA PRADESH HIGH COURT
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... ... ..... d counsel for the petitioner and the learned Government Pleader for Revenue. Section 22-A of the Act empowered the Government to issue notifications almost preventing the registration of documents in respect of the lands to be mentioned therein. Such a power was held to be ultra vires and the provision was struck down by the Hon’ble Supreme Court in State of Rajasthan v. Basanth Nahata. Once the sole basis for the second respondent to refuse registration had disappeared, he is under obligation to receive the documents and consider the same, in accordance with the provisions of the Indian Stamp Act and the Registration Act. Hence, the Writ Petition is disposed of, directing the second respondent to receive and process the document presented by the petitioner and take necessary steps, in accordance with the provisions of the Indian Stamp Act and the Registration Act, within one (1) week from the date of receipt of a copy of this order. There shall be no order as to costs.
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2007 (2) TMI 707 - CESTAT KOLKATA
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... ... ..... 997 to March, 2002. He also states that as per Board’s Circular No. 79/9/2004-ST dated 13-5-2004, charges for erection, installation and commissioning are not covered under the category of consulting engineer services for the relevant period. In view of the Board’s Circular dated 13-5-2004, the impugned Order is set aside and the appeal is allowed with consequential relief to the appellants. (Pronounced in the open court.)
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2007 (2) TMI 706 - CESTAT, BANGALORE
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... ... ..... n a careful consideration of the matter, we find that the Government of India has recognized their activity as non-commercial one. The appellants are rendering training to the candidates who are selected by the Central Government and the State Government. Although the appellants have provided certain training to some private candidates also, it cannot be said that they are a profit oriented organization. They have also produced Balance Sheet to show that they do not have funds to pre-deposit the amount. Therefore the stay application is allowed by granting waiver of pre-deposit of the amount and staying its recovery till the disposal of the appeal. As the amount involved in the matter is more than ₹ 1.59 crores, therefore out of turn hearing of the appeal is granted. The matter to come up for final hearing on 26th June 2007. In the meanwhile the Commissioner to file his comments and counter to the 'Grounds of Appeal'. (Pronounced and dictated in the open court)
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