|
Advanced Search Options
Case Laws
Showing 1 to 20 of 654 Records
-
2007 (11) TMI 712
... ...
... ... ..... n done by respondent No. 1-accused. The fact that the charge-sheet has been filed or bail has been granted is really of no consequence because of the fact that relief in the regular bail application appears to have been granted to respondent No. 1 in view of the interim protection given by the High Court to the accused by the impugned order. 5. In view of the aforesaid position, the impugned order is set aside and the matter is remanded for fresh consideration. We make it clear that we have not expressed any opinion on the merits of the case. To avoid unnecessary delay let the parties appear without further notice on 23rd November, 2007, before learned Single Judge. If any party does not appear on that day, needless to say learned Single Judge shall deal with the matter in accordance with law. Learned Chief Justice of the High Court is requested to direct listing of the matter before learned Single Judge according to the roaster. The appeal is allowed to the aforesaid extent.
-
2007 (11) TMI 711
... ...
... ... ..... rs that the present petitioners are in charge of and responsible to the company for conduct of the business of the company and have been looking after the business of the company and the offence under Section 138 of the Act has been committed with the knowledge, consent and connivance of the present petitioners besides other and is attributable to neglect on their part. 15. In view of the decision of the Apex Court in N. Rangachari (Supra) when specific averments have been made against each of the petitioners and since it can be adjudged only during the course of trial whether the present petitioners were in charge of or responsible to the affairs of the company or not, the present petition is wholly misconceived and is not maintainable and the same is thereby dismissed with cost of Rs. 5,000/- 16. The cost of Rs. 5,000/- be deposited by the petitioner with the trial court within one month from today failing which the trial court shall recover the same in accordance with law.
-
2007 (11) TMI 710
... ...
... ... ..... order suffers with legal infirmity and liable to be quashed. The reason behind in issuing a show cause notice is precisely very clear in view of the fact that a proceeding once concluded after a regular hearing should not be ordered to be re-opened suo moto by the authorities concerned in a capricious manner and reasonableness requires that parties to be affected by the same should be heard. 13. In this view of the matter, we are of the view that the orders impugned suffer from the infirmity of not giving reasonable opportunity to the appellants before reopening the proceedings. The order, therefore, is liable to be set aside. Under these circumstances, the order of the High Court both learned Single Judge and the Division Bench are set aside. However, the State Government is free to pass fresh order if they so desire under Section 45-B of the Act after affording opportunity to all the parties including the appellants herein. Civil appeal is allowed to this extent. No costs.
-
2007 (11) TMI 709
... ...
... ... ..... . In this case, according to the appellant, since the issue was not raised at any stage the Department was not given any opportunity to prove that the product in question was in fact being manufactured within the definition of the word in the Central Excise Act. Delay Condoned. Issue notice limited to the question as to why the matter should not be remanded back to the Tribunal for disposal. Although counsel for the respondents insists that the point is covered by the judgement of this court in the case of Meltex (I) Pvt. Ltd. (supra), but, in view of the distinction pointed out in the order dated 15th July 2005, we feel that it would be in the interest of justice that the case is remitted to the Tribunal for fresh decision in accordance with law. Ordered accordingly. The impugned order is set aside. All contentions are left open. Anything stated in this order be not taken as an expression of opinion by this Court. The appeal are allowed accordingly with no order as to costs.
-
2007 (11) TMI 708
... ...
... ... ..... pective tenderer has a right to insist for a process in harmony therewith. 106. In the above premise, the pronouncement of the Apex Court in Directorate of Settlement, A.P and Ors. (Supra), enjoining the edict of existence of a legal right of the person aggrieved as a prerequisite to seek a writ of mandamus for the enforcement thereof, is of no avail to the respondents. 107. For the reasons mentioned hereinabove with respect, I am unable to subscribe to the view expressed by the Calcutta High Court in Shimnit Utsch India Ltd. and Anr. (Supra) vis-a-vis the decision rendered in Association of Registration Plates (Supra). In the result, I find sufficient force in the petition, which therefore, is allowed. The impugned tender process in the form as it stands today, being opposed to the letter and spirit of the pronouncement of the Apex Court in Association of Registration Plates (Supra), is hereby adjudged illegal, unconstitutional, null and void and is non est in law. No costs.
-
2007 (11) TMI 707
... ...
... ... ..... the rate of Rs. 215; for example, the serial No. 10 i.e. contingency over and above costing , and for custom clearance, documentation or administration charges and warehousing. It is, however, clear that no issue was framed relating to the claim of enhanced rate for transportation at the rate of Rs. 45/- per M.T. and even no ground was urged accordingly. 18. In view of the above, we direct that the respondent- society shall be paid at the rate of Rs. 108 per M.T. in terms of the contract up to 750 M.T. and at the rate of Rs. 215 per MT for quantum beyond that. The interest rate shall be 6% as fixed by the High Court. The respondent-Society shall not be entitled to any amount beyond the agreed amount of Rs. 15 per M.T. for transportation. Civil Appeal No. 7440 of 2000 is allowed to the aforesaid extent. 19. The Society's appeal (Civil Appeal No. 2540 of 2002) is sans merit and deserves dismissal, which we direct. 20. There shall be no order as to costs in both the appeals.
-
2007 (11) TMI 706
... ...
... ... ..... l order. 17. Under these circumstances, there is nothing on record to show, at this stage, that after the trial court has passed the bail order, the respondent had made any effort to tamper with the evidence or influence any of the witnesses while in custody. So there is no merit in the present petition and no ground is made out for cancellation of the bail. 18. However, it is made clear that if, after the release from judicial custody, the respondent tries to influence any of the prosecution witnesses or tamper with the evidence, then the petitioner will be at liberty to approach the trial court for the cancellation of the bail or modification of any of the conditions, imposed by the trial court. 19. With these observations, the present petition for cancellation of bail is dismissed and the stay granted on the operation of the order dated 18th October, 2007 of the learned trial court, by this Court, stands vacated. 20. Copy of this order be sent to the trial court forthwith.
-
2007 (11) TMI 705
... ...
... ... ..... int and if any such petition in filed, notice should be ordered to the petitioner herein and after giving an opportunity of hearing to him appropriate orders should be passed in the petition seeking condonation of delay. If the delay is condoned then the learned Magistrate can take cognizance of the complaint and proceed further in accordance with law. 10. However the contention of the learned Counsel for the petitioner that if the impugned order of the learned Magistrate is set aside and liberty is given to the respondent to file a petition to condone the delay and even if the delay is condoned the learned Magistrate cannot take cognizance of the complaint because that will amount to entertaining a complaint on a second cause of action is untenable since there is absolutely no question of arising of a second cause of action in this case. 11. With the above directions, the Criminal Original Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed.
-
2007 (11) TMI 704
... ...
... ... ..... uestions of law as formulated in paragraph 2 of the appeal memo.
-
2007 (11) TMI 703
... ...
... ... ..... iod of three years. This exception has been made in order to ensure that no party is made to suffer for no fault of his whereas suo motu action for rectification is to be taken by the concerned authority within a period of three years in view of the clear language of the Sub-section (1) of Section 22 of the Act. 7. In view of the forgoing discussion we are of, the considered opinion that the decision in the case India Steel Company is incorrectly decided whereas the decision in the case of Karan Chand Thapar (supra) lays down the correct law. As in the present case, the Tribunal has held that the order of rectification passed on 4.9.1984 has been passed suo motu and it was not on any application made before the Assessing Authority, the order passed after beyond a period of three years I from 30.5.191 was barred by limitation. The revision has, therefore, no merit and is hereby dismissed. In the facts and circumstances of the case, the parties are left to bear their own costs.
-
2007 (11) TMI 702
... ...
... ... ..... per son had acted in concert with the acquirer-PSPL when they acquired the shares of KJEL in earlier financial years. It is, therefore, clear from the above discussion that even the fourth pre-condition attracting Regulation 11(1), as laid down by the Supreme Court in Swedish Match AB's case (supra), is also not satisfied in this case. 16. The order of the adjudicating officer holding that the appellants violated Regulation 11(1) on the acquisition of 16,000 shares of KJEL on 12-12-2002 cannot be sustained as the pre-conditions for attracting Regulation 11, as laid down by the Supreme Court, are not satisfied in this case. The adjudicating officer has erred in this regard. Consequently, the impugned order levying the penalty of ₹ 84,54,595 is set aside. For the view that we have taken above, it is not necessary to deal with the other contentions raised by the appellants. In the result, the appeal is allowed and the impugned order set aside with no order as to costs.
-
2007 (11) TMI 701
... ...
... ... ..... is not important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee and cannot be said to be hit by Article 285 of the Constitution. In this context it is to be made clear that what is exempted by Article 285 is a tax on the property of the Union of India but not a charge for services which are being rendered in the nature of water supply, for maintenance of sewerage system. Therefore, in our opinion, the view taken by the Division Bench of the Allahabad High Court is correct that the charge is a fee, being service charges for supply of water and maintenance of sewerage system, which cannot be said to be tax on the property of the Union. Hence it is not violative of the provisions of Article 285 of the Constitution. 24. As a result of our above discussion, we do not find any merit in this appeal and the same is dismissed. There will be no order as to costs.
-
2007 (11) TMI 700
... ...
... ... ..... no hesitation to hold that the reasoning assigned by the lower Appellate Court for acquitting the accused is perfectly legal and valid and I find no reason to interfere with such order of acquittal. In this case, it is relevant to note that the parties were having prior acquaintance and they were part and parcel of one establishment and it cannot be ruled out, the possibilities of vexatious litigation due to personal animosity. I am constrained to draw such a presumption on the fact that though in the complaint, the allegation was for non-payment of ₹ 2 lakhs and though the trial court has awarded only imprisonment as a sentence, the appellant/complainant has not chosen to prefer appeal against the insufficiency of sentence, in other words, there was no move from his side for realising the amount by way of fine or compensation by filing an appeal. In the light of the above facts and circumstances, there is no merit in the appeal and accordingly, the appeal is dismissed.
-
2007 (11) TMI 699
... ...
... ... ..... e direct the Tribunal, before whom the appeals are pending against the order passed by the Commissioner rejecting the application filed under Section 12A of the Act, to take up the matter on priority basis and decide the same as expeditiously as possible without being influenced by any of the findings recorded by the High Court in the impugned order. 15. We make it clear that in the event the matter is finally decided in favour of the assessee, the assessee, viz., the Corporation would be at liberty to get these appeals revived for a decision on merits. Similarly, in case these appeals are re-opened at the instance of the assessee, the appeals filed by the Revenue shall also get revived automatically for decision on merits. All questions are left open. 16. It is further made clear that the order of the High Court remanding the matter in respect of main assessment shall remain in abeyance till the matter regarding registration is decided finally by the Tribunal. 17. No. costs.
-
2007 (11) TMI 698
... ...
... ... ..... vidence to show that A-4 to A-7 were acting in conspiracy with A-1, A-2, A-8, A-9 and A-10 and that A-4 to A-7 have fraudulently and dishonestly prepared forged bill on the basis of forged allotment letter, the offences under Sections 467, 471, 477A or Section 409 are not proved against the appellants. Consequently, the offence under the provision of the Prevention of Corruption Act is also not made out. The trial court was, therefore, not justified to convict A-4 to A-7 under the aforesaid sections of law. 18. In the result, Appeals filed by Accused Nos. 4 to 7 are hereby allowed. Conviction recorded and sentence imposed upon A-4 to A-7 by the Trial Court and confirmed by the High Court under Section 13(1)(c) read with Section 13(2) are hereby set aside. The Appellants stand acquitted. They are on bail and their bonds and sureties are discharged. 19. Appeals filed by the State are dismissed. Notice issued by this Court on 28.11.2005 against A-4 to A-7 shall stand discharged.
-
2007 (11) TMI 697
... ...
... ... ..... 158B and 158BB of the Act, have got amended with retrospective effect from 1-7-1995. Since the Tribunal has passed the order before the Finance Act, 2002 has come into force, he requests this Court to allow the appeal and remand the matter to the Tribunal to re-examine the issue based on the amended provision of the Income Tax Act. 5. Having heard the counsel for the parties, we notice that the Tribunal has disposed of the appeal of the assessee prior to the Finance Act, 2002. But the Finance Act has come into force when this appeal is pending. Since this appeal is a continuous process of the original proceedings, we are required to consider the amended provision and pass an appropriate order on merits. 6. In the result, we allow the appeal without considering the questions of law and remand the matter to the Tribunal for fresh consideration in accordance with law by applying the amended provision of Section 158BB of the Income Tax Act. 7. Accordingly, this appeal is allowed.
-
2007 (11) TMI 696
... ...
... ... ..... d facts are involved, writ is not the remedy and the petitioner has to establish his right before appropriate Civil Forum. Aggrieved by the order so passed by the learned Judge, the petitioner in the Original Petition has filed this writ appeal. (4). The learned counsel appearing for the appellant would submit that the learned Judge was not justified in directing the petitioner to establish his title to the property in a properly constituted civil suit. Therefore, requires us to modify that portion of the order passed by the learned Judge. (5). If we modify that portion of the order passed by the learned Judge, which would, according to the petitioner/appellant would affect his interest, it would not cause any prejudice to the other side. Therefore, while rejecting the appeal, we modify the orders passed by the learned Judge only to the extent that the petitioner/appellant may establish his rights in appropriate Forum by following appropriate proceedings. Ordered accordingly.
-
2007 (11) TMI 695
Petition u/s 482 of the Code of Criminal Procedure - Compounding after the confirmation of the conviction passed by the Magistrate Court - Dishonor of Cheque u/s 138 of the Negotiable Instrument Act (Act) - "insufficiency of funds" - Can the High Court reverse, alter or modify the conviction which became final by its own order passed in a revision petition, by using power u/s 482 of the Cr.P.C., which ultimately may amount to cancellation of conviction and sentence taking note of subsequent events like compounding of the case? - HELD THAT:- We hold that order passed in the revision which has become final cannot be altered by invoking Section 482 even if the matter is subsequently compromised between the parties or complainant wants to withdraw the complaint. By using inherent powers, court cannot violate the written provisions of the Code. If the offence is compounded, virtue of Section 320(8) will amount to acquittal and in view of Section 326, conviction confirmed by the High Court in revision cannot be modified by a proceedings u/s 482.
Once the compounding is accepted by the court, court cannot impose any sentence. Imposition of fine and ordering imprisonment in default of payment of fine, after acquitting the accused is foreign to criminal law. After acquitting a person he cannot be sentenced either with imprisonment or fine. That is not possible. Inherent jurisdiction cannot be used for sentencing a person by imposing a fine even after acquitting him, bye passing the statutory provisions. Justice can be administered only according to law. Imposition of fine is different from imposition of cost or compensation. We are of the opinion that, once the compounding is permitted, it will have the effect of an acquittal and not further imposition of fine or any type of sentence can be passed in view of Section 320(8).
We are of the view that even if relief u/s 482 is a discretionary, judicial discretion cannot be exercised to discriminate between person to person. It must be applicable to all similarly situated persons. Mere delay or inconvenience in approaching Supreme Court is not a ground for invoking jurisdiction u/s 482. Thus, we overrule the decision of Sabu George's case to long as it holds that Section 482 can be invoked for accepting compounding of the offence under N.I. Act after the conviction is confirmed in a revision by the High Court.
In K. Kandasamy and Anr. v. K.P.M.V.P. Chandrasekharan Supreme Court in a pending matter accepted compounding of the offence after confirmation of the same by revisional court. In Sailesh Shyam Parsekar v. Baban Alias Vishwanath S. Godge and Anr. [2005 (3) TMI 814 - SUPREME COURT]. Apex Court allowed the compounding of offence u/s 138 of the N.I. Act when first application was filed in the appeal and conviction and sentence passed by the revisional court was set aside. This order will not prevent the petitioners to approach the Supreme Court in appropriate proceedings if the offence is compounded, if so advised.
As found in Abdul Latheef's case (supra) the direction in the revisional order is to pay the compensation and not to deposit the compensation. Therefore if the amount is paid to the complainant there is no question of the petitioner undergoing default sentence. In this case as seen from joint petition entire amount ordered as compensation is paid. The remaining part is only the appearance of the petitioner before the Magistrate Court, and undergo imprisonment till the rising of the court.
Since there was the stay of execution of judgment, petitioner is allowed to appear before the Magistrate Court to receive the remaining part of the sentence if he chooses to do so. Hence this Criminal M.C. is dismissed.
-
2007 (11) TMI 694
... ...
... ... ..... ne profit would go on and the same would be deposited by the appellant is of no consequence inasmuch as by reason thereof neither proceeding was stayed nor the operation of the judgment and decree had been stayed. In fact, it was an order passed in favour of the decree holder. The said direction did not come in his way to execute the decree for possession. 17. We, therefore, do not see any reason to hold that the said order could be construed to be one passed in favour of the decree holder-respondent as was contended or otherwise. Mr. Adkar relies upon the decision of this Court in Rekha Mukherjee v. Ashis Kumar Das and Ors. AIR2005SC1944 which has no application in the present case. 18. We, therefore, are of the opinion that the Executing Court as well as the High Court committed a manifest error in opining that the Execution Petition was not barred by limitation. The appeal is allowed. The impugned judgment is set aside with costs. Counsel fee quantified at ₹ 5,000/-.
-
2007 (11) TMI 693
... ...
... ... ..... ot to compel the petitioners for production of books of accounts for 1994-95 and 1995-96 pursuant to impugned notices issued. Since petitioners are not bound to preserve books of accounts, at the time when notices were issued, penalty proposal contained in the notices is also quashed. However, I make it clear that even if petitioners are not bound to preserve books of accounts beyond two years, it is open to the department to collect information, compare the same with statement of accounts and returns filed by the petitioners and if the department has any material to hold that accounts produced were wrong, and the assessments based thereon are wrong, it is open to them to revise the assessments in accordance with the statute after issuing notice to the petitioners. Since O.P. was pending in this Court, respondents are free to ignore the limitation for initiating proceedings from the date of filing of OP that is 10.3.2003 till the date of production of a copy of this judgment.
........
|
