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Case Laws
Showing 1 to 20 of 650 Records
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2006 (8) TMI 696
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... ... ..... martial proceedings having not commenced within the period of limitation prescribed by Section 122 of the Act, cannot be accepted. In the scheme of the Act and the purpose sought to be achieved by Section 19 read Rule 14, there is no reason to place a narrow construction on the term impracticable' and therefore on availability or happening of such events as render trial by court-martial impermissible or legally impossible or not practicable, the situation would be covered by the expression-the trial by court-martial having become 'impracticable'. 11. It was also pleaded that approval of Central Government was necessary in case action was taken under the proviso to Rule 17. We find no such necessity prescribed. All that is required that where proviso to Rule 17 is resorted to report has to be made to the Central Government. Record reveals that same has been done. Above being the position we find no merits in these appeals, which are accordingly dismissed. No cost.
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2006 (8) TMI 695
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... ... ..... e complaint. The learned trial Magistrate has gravely erred in having failed to consider the above aspect of the case. Therefore, I have no hesitation to hold that the Court below could not have taken cognizance of the complainant (complaint?) as far as the offence under Section 138 of the Negotiable Instruments Act is concerned. 5. By applying the ratio of the decision in the case of U.C. Saxena (supra), in the instant case, the complaint filed by Shri Gulshan Mahajan, a person who has not been legally and validly authorised by means of a general power of attorney or a special power of attorney cannot be held to be a properly instituted complaint in law and the same is liable to be quashed on that score alone.... 13. In view of the above discussion, this petition is allowed and the criminal complaint No. 115 of 1998 (Annexure P-1) filed by the respondent No. 1 as well as the summoning order and the other consequential proceedings, only qua the petitioner, are hereby quashed.
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2006 (8) TMI 694
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... ... ..... y inferential. It appears that the Commissioner has decided the question of invoking the extended period with reference to the amended provision of Section 73 and not to the earlier provision, which was applicable in view of the show cause notice having been issued on 6-9-2004, that is, prior to such amendment which was made with effect from 10-9-2004 by substituting the same proviso. 3. Having regard to the facts and circumstances of the case, we direct that there will be interim stay of the impugned order without any condition of pre-deposit. This application stands disposed of accordingly. (Order dictated and pronounced in the open Court on 7-8-2006)
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2006 (8) TMI 693
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... ... ..... e petitioner under Section 138 of the N.I. Act are upheld; c) But the sentence imposed is modified and reduced. In supersession of the sentence to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C. to pay an amount of Rs. 2,20,000/- (Rupees Two Lakhs Twenty Thousand only) as compensation and in default to undergo S.I. for a period of 3 months. If realised the entire amount shall be released to the complainant. The petitioner shall appear before the learned Magistrate on or before 16-10-2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed. Needless to say the amount if any deposited during the pendency of the proceedings before the courts below shall be given due credit and the same shall be released forthwith to the complainant.
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2006 (8) TMI 692
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... ... ..... re the Court to frame charges against the accused. Therefore, the trial court analysing the materials and documents that were made available at the stage of framing charges and on their face value arrived at the right conclusion that charges could not be framed against the respondents/accused. 25. In view of the well settled position of law as has been enunciated by the various Courts in the decisions referred earlier and for the reasons stated above, I hold that there is no concrete materials to frame charges as against the accused and the expenditures are within the known sources of income of the individual accused as found by the trial court and therefore no interference is called for with the orders of discharge passed by the learned Chief Judicial Magistrate, Villupuram in Crl.M.P.Nos 374, 375, 383 and 376 of 2004, dated 21.7.2004 in Spl.Case.No 7 of 2003. 26. In the result, these Criminal Revision Cases are dismissed. Consequently, connected Crl.M.Ps are also dismissed.
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2006 (8) TMI 691
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... ... ..... led by the respondents in the writ petition, the possession was also taken on 13.8.1992. The appellants 1 to 3 herein purchased the plots much after the Award enquiry under the sale deeds dated 26.10.1994, 28.9.1992 and 24.2.1993 respectively. Therefore, the appellants, who are subsequent purchasers, are not entitled to maintain a challenge to the acquisition proceedings in view of the law laid down by the Supreme Court in U.P. Jal Nigam v. Kalra Properties (P) Ltd. 1996 1 SCR 683. 17. Therefore in our considered opinion, the normal principle that proceedings against a dead person are a nullity, cannot be imported to proceedings under the Land Acquisition Act, 1894, unless it is established that the factum of death was brought to the notice of the acquiring authorities at the appropriate stage. Hence, the order of the learned Judge does not call for any interference and the writ appeal is dismissed without any order as to costs. Consequently, connected WAMP is also dismissed.
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2006 (8) TMI 690
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... ... ..... totality of facts and circumstances, in our considered view, the ends of justice would be met if we hold the Ex-servicemen Contributory Health Scheme, 2002 (ECHS) to be legal, valid, intra vires and constitutional but direct the respondent-Government either to waive the amount of contribution or to pay such amount on behalf those ex- servicemen who retired prior to January 1, 1996 and who intend to avail medical facilities and benefits under the said scheme by exercising option by becoming members of ECHS. In other words, it is open to ex- defence personnel, who retired prior to January 1, 1996 to become members of ECHS and to claim medical facilities and benefits under the said scheme without payment of contribution amount. They are, however, not entitled to claim medical allowance in future. The writ petition is accordingly disposed of. Rule is made absolute to the extent indicated above. In the facts and circumstances, however, parties are directed to bear their own costs.
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2006 (8) TMI 689
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... ... ..... . We find no merit in this appeal. It is, accordingly, dismissed.
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2006 (8) TMI 688
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... ... ..... clusive proof of the amount recovered. The decree holder has not obtained any such certificate from the High Court of Republic at Singapore. Does it mean that this Court is precluded from executing the decree? The answer certainly is 'No'. Had a certificate been brought, that would have been the conclusive proof of the amount realised. That does not, however, mean that the decree holder cannot produce any other proof of the amount recovered or amount due. It is nobody's case that any amount under the decree has so far been recovered. The judgment debtor cannot dispute that the entire amount under the decree is still due. Judgment debtor, Therefore, cannot contest the execution petition on the plea that the certificate of non-realisation has not been obtained from the High Court of Republic at Singapore. 17. In view of the above, it is clear that none of the objections to the execution petition has any merit. E.A. No. 385/2005 is dismissed with cost of Rs. 10,000/-
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2006 (8) TMI 687
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... ... ..... . Further, the Supreme Court has categorically held that the charge-sheet can be filed even in the absence of such a sanction. If Investigating Officer is permitted to file the charge sheet without sanction, obvious intention is to treat such a charge-sheet as proper charge-sheet and not incomplete charge-sheet. Under Section 309 of the Code the Court is empowered to postpone or adjourn proceedings. Thus, when there is no sanction produced, the Court would adjourn the proceedings and would take cognizance of an offence after such a sanction is produced which can be produced subsequently with the permission of the Court. However, for the purposes of Section 167(2) of the Code, the charge-sheet is treated to have been filed and proviso (a)(ii) would not be attracted. 14. I am, therefore, of the view that order of the learned ASJ is in tune with the legal provisions as interpreted by the Apex Court and no interference is called for. 15. This application is accordingly dismissed.
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2006 (8) TMI 686
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... ... ..... other words, it is not permissible to claim refund by invoking section 72 as a separate and independent remedy when such a course is expressly barred by the provisions in the Act, vis., Rule 11 and section 11-B. For this reason, a suit for refund would also not lie. Taking any other view would amount to nullifying the provisions of Rule 11/section 11-B, which, it needs no emphasis, cannot be done. It, therefore, follows that any and every claim for refund of excise duty can be made only under and in accordance with Rule 11 or section 11-B, as the case may be, in the forums provided by the Act. No suit can be filed refund of duty invoking section 72 of the Contract Act. 28. The appeal is as such allowed and the decree is set aside. 29. Since the decree has been set aside the order passed in execution thereof automatically ceases to be operative. Both the appeals are thus allowed. There shall be no order as to costs. Prayer for stay made by Mr. Dutta is considered and rejected.
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2006 (8) TMI 685
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... ... ..... under - Offence to be compoundable - Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable. 5. The compounding of the offence under Section 138 can be done during the trial of the case as well as by the High Court or Court of Session while acting in the exercise of its power of revision under Section 401 Cr.P.C. Reference may be made to Section 320(6) Cr.P.C. in this regard. 6. Further, under Section 320(8) Cr.P.C. the composition of an offence shall have the effect of acquittal of the accused with whom the offence has been compounded. In view of the above, where the parties have voluntarily settled the matter, it is a fit case for allowing them to compound the offence. Order accordingly. Resultantly, the revision is accepted and the petitioner is acquitted of the charge under Section 138 of the Negotiable Instruments Act. His conviction and sentence for the said offence is set aside.
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2006 (8) TMI 684
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... ... ..... to a conclusion that evidence of the Collector was necessary for just and fair decision of the case, the order passed by him could not have been set aside by the High Court on the ground that it would amount to filling in lacuna in the prosecution case. We are clearly of the opinion that in the facts and circumstances of the case, the examination of the then Collector, Dadra and Nagar Haveli cannot be termed as filling in lacuna in the prosecution case. The learned Sessions Judge rightly observed that the evidence of the Collector will not cause any prejudice to the respondent as he had himself pleaded alibi and had led evidence to substantiate the same. We are, therefore, of the opinion that the High Court clearly erred in setting aside the order passed by the learned Sessions Judge. 15. In the result, the appeal is allowed and the judgment and order dated 8.10.2004 passed by the High Court is set aside and the order dated 12.8.2004 of the learned Sessions Judge is restored.
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2006 (8) TMI 683
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... ... ..... f opinion that the learned Magistrate must be directed to consider such contentions also afresh after giving all the interested parties an opportunity to place relevant data before the court. 26. In the result a) This revision petition is allowed; b) The impugned order is set aside. c) The learned Magistrate is directed to consider the application afresh after giving the petitioner and opportunity to file a proper application under Section 5 of the Limitation Act and to file additional statements if necessary. Needless to say, the 2nd respondent or anyone interested in resisting the petition shall also be permitted to raise their contentions if they have right under law to oppose the application. 27. The parties shall appear before the learned Magistrate on 25.9.06 to continue the proceedings. The learned Magistrate shall make every endeavour to dispose of the claim petition as expeditiously as possible at any rate, within a period of 45 days from the date of such appearance.
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2006 (8) TMI 682
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... ... ..... bar of limitation if a Revision Application is to be filed in the Sessions Court. I find that this Petition was filed by the Petitioner in this Court on 15th March, 2005 and on 21st March, 2005, this Court issued notice before admission to the Respondents. If Petitioner approaches the Sessions Court by way of a Revision Application, while considering the prayer for condonation of delay, the Sessions Court is bound to take into account the fact that the Petitioner filed this Petition in this court on 15th March, 2005. The Sessions Court will also consider the fact that this court issued notice on the Petition and the same remained pending till today. 13. Hence, the Writ Petition is rejected. Rejection of the Writ Petition will not prevent the Petitioner from adopting remedy of filing Revision Application before the Sessions Court. All contentions of the parties on merits of the pending complaint are kept open. 1Criminal Application No. 46 of 1977, decided on 20/21 April, 1977
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2006 (8) TMI 681
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... ... ..... at by the Labour Court is nothing but perverse against the facts and passed the award in favour of the workman on totally misplaced sympathy. In our opinion, both the learned Single Judge and of the Division Bench are right and within their jurisdiction in re-assessing and re-valuing the weight of the evidence in the case recorded by the Labour Court by which the High Court came to the conclusion that the workman was not entitled to any relief. When the judgment of the Labour Court is perverse and against the facts and records, the High Court is entitled to exercise its jurisdiction under Article 226 and to interfere with the perverse finding and set aside the same. 20. For the foregoing reasons, the appeal filed by the wife of the workman has no force and merit or substance and, therefore, is liable to be dismissed and accordingly we do so by affirming the well-considered judgment of the learned Single Judge of the High Court and as affirmed by the Division Bench. No costs.
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2006 (8) TMI 680
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... ... ..... ed and he would get the comments from the Commissioner in the matter. 4. On a careful consideration, we notice from the records produced that the appellants had produced before the authorities many pieces of evidence including the invoices, etc. Now they have produced Chartered Accountant’s Certificate to contest the includability of certain elements in the C & F category. The observation of the Commissioner that they have not produced any evidence does not appear to be correct. There is a clear violation of principles of natural justice. Ultimately, the matter is required to be remanded therefore, the appellants should be granted full waiver of pre-deposit and staying its recovery till the disposal of the appeal. Meanwhile, the learned JCDR to call on for comments from the Commissioner on the submissions made by the appellants and on the evidence produced by them. Matter to come up for final hearing on 27th October 2006. (Pronounced and dictated in open Court)
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2006 (8) TMI 679
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... ... ..... Mill (P.) Ltd., 2003 2 SCC 111, the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. (P. 527) 4. In view of the fact that the assessee agreed to the said addition before the Tribunal and the settled legal position, the correctness of the Edition cannot be gone into. 5. No substantial question of law arises. The appeal is dismissed.
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2006 (8) TMI 678
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... ... ..... nd consequently, there was an obligation on the part of the tenant to send an intimation under Section 32F(1A). None of the cases related to a widow-landlord who had terminated the tenancy during her lifetime and taken possession of a portion of the tenanted land. Therefore, the said decisions will not apply. 16. As a consequence, we allow this appeal and set aside the order of the High Court and those of the authorities below and hold that the appellant-tenant continued to be the tenant of the land which remained with him after delivering half of the land to the landlord Anusuyabai in pursuance of the order dated 30.6.1960 made on her application under Section 31(1) read with Section 29 of the Act. The appellant shall be entitled to restoration, if he has been dispossessed by the respondent from any part of his land in Gat No. 332 in pursuance of the order of SDO/Revenue Tribunal/High Court. Parties will also be entitled to seek benefits/reliefs referred to in para 14 above.
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2006 (8) TMI 677
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... ... ..... preciation and investment allowance. In a given case, a computer kept in the office of a manager for his personal use or for some other purpose, then, such computer would not be entitled to investment allowance and/or additional depreciation. In the present case, the words "office premises" though would be covering office but, industrial premises would not come within office premises if the said premises are used for data processing. In the present case, undisputedly, the office premises are used as industrial premises for production of the data processors. The submission of the learned Counsel is based on a narrow interpretation of the words "office premises", which we are unable to concede. 10. In view of the above referred discussion, question No. 1 deserves to be answered against the interest of the Revenue. Consequently, question Nos. 2 and 3 will also have to be answered against the interest of the Revenue. The reference stands disposed of. No costs.
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