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2007 (2) TMI 705 - SUPREME COURT
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... ... ..... .8.2003 who are respondent Nos.2,3,4,5,6,9,10,14,16,19,20,21 and 37, in the writ petition filed by Maurya, stand disqualified in terms of Article 191(2) of the Constitution read with paragraph 2 of the Tenth Schedule thereof, with effect from 27.8.2003. If so, the appeal filed by the writ petitioner has to be allowed even while dismissing the appeals filed by the 37 MLAs, by modifying the decision of the majority of the Division Bench. Hence the writ petition filed in the High Court, will stand allowed with a declaration that the 13 members who met the Governor on 27.8.2003, being respondent numbers 2, 3, 4, 5, 6, 9, 10, 14, 16, 19, 20, 21 and 37 in the writ petition, stand disqualified from the Uttar Pradesh Legislative Assembly with effect from 27.8.2003. 54. The appeals filed by the 37 MLAs are dismissed and the appeal filed by the writ petitioner is allowed in the above manner. The disqualified members will pay the costs of the writ petitioner, here and in the High Court.
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2007 (2) TMI 704 - SUPREME COURT
Murder - Challenged the Order of conviction and sentence recorded by the High Court - Scope of the Powers of Appellate Court - Offences punishable u/s 143, 147, 148, 302 and 324 r/w Section 149 of the Indian Penal Code ('IPC') - HELD THAT:- In our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
In our view, the submission of the learned Counsel for the appellants is well founded that it is not material whether Accused No. 1 had or had not filed a complaint or he was or was not examined by a doctor, but the fact that even though it was the case of prosecution that Accused No. 1 was injured during the course of incident, prosecution witnesses tried to suppress that fact which would throw doubt as to the correctness of the case or the manner in which the incident had happened.
The trial Court had also stated that it was unnatural that the prosecution witnesses and deceased Anjaniappa could have gone to Hanumanthapura Bypass at about 9.30 p.m. when a shorter route was available for going to their destination. The trial Court observed that there was inconsistency in prosecution evidence as to availability of electric light at the time of incident. The Court also noted that the knife produced before the Court as mudamal article was not the same which was used by Accused No. 8 for inflicting injury on the deceased. There was also no consistency in evidence as to injuries sustained by prosecution witnesses.
Trial Court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside.
Thus, the appeal deserves to be allowed and is, accordingly, allowed. The order of conviction and sentence recorded by the High Court is set aside and the order of acquittal passed by the Additional Sessions Judge is restored. The appellants are hereby acquitted of the offences with which they were charged. They are ordered to be set at liberty forthwith unless their presence is required in any other case.
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2007 (2) TMI 703 - SUPREME COURT
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... ... ..... decision, as has been clarified by it, the question of invoking the said paragraph in the instant case would not arise. Moreover, in view of series of decisions of this Court explaining paragraph 53 Umadevi (supra), such a Scheme could be made out only in respect of such employees whose appointments were irregular and not illegal. This aspect of the matter has recently been considered in Punjab Water Supply & Sewerage Board v. Ranjodh Singh & Ors. 2006 (13) SCALE 426 in the following terms "A combined reading of the aforementioned paragraphs would clearly indicate that what the Constitution Bench had in mind in directing regularisation was in relation to such appointments, which were irregular in nature and not illegal ones." See also Municipal Corporation, Jabalpur v. Om Prakash Dubey 2006 (13) SCALE 266 (2007) 1 SCC 373 For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. No costs.
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2007 (2) TMI 702 - SUPREME COURT
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... ... ..... ed to the claim of the workman. The liability under Section 147(2)(b) of the 1988 Act, on the other hand, extends to third party. Our attention has been drawn to some decisions of the High Courts which have taken different views in regard to the liability of the insurer to be joined as a party in a proceeding under the 1923 Act. It is not necessary for us to into the correctness or otherwise of the said decisions, as in our opinion, there does not exist any bar in the 1923 Act in this behalf. Section 19(1) of the 1923 Act specifically provides that any question in regard to the liability of a person who is required to indemnify the employer must be determined in the proceeding under the said Act and not by way of a separate suit. Thus, a question of this nature should be gone into the proceeding under the 1923 Act. We, therefore, albeit for different reasons would uphold the judgment of the High Court. This appeal, therefore, being devoid of the merit, is dismissed. No costs.
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2007 (2) TMI 701 - SUPREME COURT
Dowry demands - Victim committed suicide - Seeking grant of anticipatory bail u/s 438 of the Code of Criminal Procedure 1973 - Offence u/s 304B of the Indian Penal Code, 1860 ('IPC') and Section 4 of the Dowry Prohibition Act, 1961('Act') - HELD THAT:- In the very nature of the direction which the Court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the Court cannot restrain arrest.
Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his dis-appearance to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation.
In view of what has been stated in some of the directions, given by learned Single Judge, as quoted, are not in line with what has been stated in Adri Dharan Das's case [2005 (2) TMI 817 - SUPREME COURT]. Accordingly we modify the directions.
Since the respondents have already surrendered and have been granted bail in terms of the High Court's directions, they shall surrender before the concerned court and shall move for bail in terms of Section 439 of the Code within four weeks from today. On that being done the case shall be considered in its proper perspective uninfluenced by the fact we have disapproved stipulation of conditions by the High Court. The concerned court shall deal with the matter appropriately. It is brought to our notice that the husband of the deceased has already been released on bail after his surrender. The effect and/or relevance of that order shall be duly considered by the concerned court while dealing with the application for bail to be filed within stipulated time.
The appeal is allowed to the aforesaid extent.
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2007 (2) TMI 700 - SUPREME COURT
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... ... ..... ion in accepting the arguments advanced by the learned Counsel appearing for the appellant and allowing the appeal. 18. In view of the letter of the University dated 6.9.2005 in which the University had acknowledged that the 6th advertisement had indeed been issued and it would not be proper to issue a 6th advertisement, the basis of the impugned order is incorrect and, therefore, the same is liable to be set aside on this ground. In such circumstances, the case of the appellant would be similar to that of Mrs. Bina Patil and Mrs. Madhuri Srivastava and since the appellant has worked continuously for the last 13 years, it is a fit case for this Court to pass a similar order as in the matter of aforesaid two persons. 19. We, therefore, allow the appeal and set aside the orders passed by the High Court with a direction to the respondents to regularize the services of the appellant on the post in question after de-reserving the same. However, there shall be no order as to costs.
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2007 (2) TMI 699 - ITAT PUNE
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... ... ..... e any iota of evidence that the DGFT claims are derived from the business of industrial undertaking, or in other words, they are directly related to the assessee's main activity of manufacturing or commissioning of boilers. Therefore, this ground raised by the assessee is decided against the assessee. 37.6 The last item 9(d) is with regard to excise duty claim. In the light of our reasoning given in respect of DGFT claim, this claim of the assessee is also not found to be acceptable for the purpose of computing deduction under Section 80-IA of the Act. Hence, it is decided against the assessee. 38. Last ground No. 10 relating to the assessee's claim under Section 80-O allowed by the Commissioner (Appeals) at ₹ 5,30,688 as against the assessee's claim of ₹ 5,46,857 was not pressed for by the assessee at the time of hearing. Hence, it stands dismissed. 39. In the result, the appeal filed by the assessee is partly allowed in the manner as indicated above.
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2007 (2) TMI 698 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ur-petitioner has changed its position to its detriment and the aforementioned position as observed in Lotus Hotel’s case (supra) is squarely applicable. For the reasons aforementioned, this petition succeeds. The PFC is directed to release the soft loan of ₹ 7,50,000/- to the entrepreneur-petitioner at the interest rate of 5% as per the terms and conditions of soft loan agreement (P-2). The interest shall accrue from the date of disbursement of the loan. We further direct that the balance amount of term loan be also released to the entrepreneurpetitioner but no interest would be charged on the released amount from March, 2003. However, interest shall be charged from the date of release of the remaining instalment from the date it is released. The needful shall be done within a period of one month from today, subject to compliance of conditions as detailed in the mortgage deed, dated 18.11.2002 (P-4). The writ petition is disposed of in the manner indicated above.
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2007 (2) TMI 697 - SUPREME COURT
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... ... ..... sharer transfers his share in holding, the other co-sharer has right to veto such transfer and thereby prevent the stranger from, acquiring the holding in an area where the law of preemption prevails. Such a right at present may be characterized as archaic, feudal and outmoded but this was law for nearly two centuries, either based on custom or statutory law. It is in this background the right of pre-emption under statutory law has been held to be mandatory and not mere discretionary.... 17. We have noticed hereinbefore that plaintiff was not a co-sharer of her father. She could not have claimed a right of pre-emption on the basis of consanguinity. Had, therefore, an opportunity of hearing been given, the plaintiff-appellant could have shown that she did not have any such right. 18. The impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. Respondents shall bear the cost of the appellant. Advocate's fee is assessed at ₹ 5,000/-.
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2007 (2) TMI 696 - SUPREME COURT
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... ... ..... its filed by the respondent against the appellants for a joint trial has not been properly appreciated by the Division Bench. So, on the facts of this case, the decision of the Division Bench is found to be unsustainable and the course adopted by it unwarranted. 20. We are of the view that on the facts and in the circumstances of the case and the nature of the pleadings in the three suits that are now before the Original Side of the Calcutta High Court, it would be just and proper to try them together and dispose them of in accordance with law for which an order has already been made. A joint trial of the three suits based on the evidence to be taken, in our view, would be the proper course under the circumstances. 21. We therefore allow this appeal and reversing the decision of the Division Bench restore the decision of the learned single judge. We request the learned single judge of the High Court to try and dispose off the three suits expeditiously in accordance with law.
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2007 (2) TMI 695 - SUPREME COURT
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... ... ..... cording to him, he specialises in documentation. He cannot, therefore, plead ignorance about the existence of the recital in the agreement. He cannot plead ignorance of its implications. 16. We were taken through the entire material. The respondent who appeared in person, brought to our notice the evidence in extenso. At the end of it all, we find that we cannot agree either with the State Commission or with the National Commission. Actually, the District Forum had been indulgent to the respondent in giving him the relief it did. Suffice it to say, we find it impossible to sustain the decision of the National Commission. 17. Hence, we allow this appeal. We set aside the decision of the National Commission and that of the State Commission. We restore the decision of the District Forum. Normally, we would have ordered the cost of the appeal to the company, but since the respondent appeared in-person, we refrain from ordering it. The parties will bear their costs in this Court.
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2007 (2) TMI 694 - ALLAHABAD HIGH COURT
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... ... ..... resent case we find that before proposing transfer of the petitioner’s cases from Kanpur to Deputy Commissioner of Income-tax, Central Circle-IV, New Delhi, the Commissioner of Income-tax, Kanpur-respondent No. 1 had issued a show-cause notice dated 10-11-2006 giving brief reasons for transfer, namely, the search dated 14-2-2006 conducted at the premises of M/s. Radico Khaitan Ltd. and its group of companies and for centralizing the cases for the purpose of assessment. The petitioner in its reply dated 2-1-2007 had given its explanation/objection on the aforesaid two grounds mentioned in the notice which has been dealt with by the Commissioner of Income-tax-respondent No. 1 in the impugned order. 21. Thus, we find that in the present case the principle of natural justice had been complied with. Therefore, we do not find any illegality in the order. 22. In view of the foregoing discussions, we do not find merit in this writ petition, which is hereby dismissed in limine.
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2007 (2) TMI 693 - SUPREME COURT
Appointment for the Posts of field staffs - Commissioner allegedly made certain appointments, without the knowledge of the State - offers of appointment issued in favour of the Respondents were cancelled - Principles of Natural Justice - violation of the provisions contained in Articles 14 and 16 of the Constitution of India - HELD THAT:- The State while offering appointments, having regard to the constitutional scheme adumbrated in Articles 14 and 16 of the Constitution of India, must comply with its constitutional duty, subject to just and proper exceptions, to give an opportunity of being considered for appointment to all persons eligible therefor.
The posts of field staffs of the Revenue Department of the State of Manipur were, thus, required to be filled up having regard to the said constitutional scheme. We would proceed on the assumption that the State had not framed any recruitment rules in terms of the proviso appended to Article 309 of the Constitution of India but the same by itself would not clothe the Commissioner of Revenue to make recruitments in violation of the provisions contained in Articles 14 and 16 of the Constitution of India.
The Commissioner furthermore was not the appointing authority. He was only a cadre controlling authority. He was merely put a Chairman of the DPC for non-ministerial post of the Revenue Department. The term "DPC" would ordinarily mean the Departmental Promotion Committee. The respondents had not been validly appointed and in that view of the matter, the question of their case being considered for promotion and/ or recruitment by the DPC did not and could not arise. Even assuming that DPC would mean Selection Committee, there is noting on record to show who were its members and how and at whose instance it was constituted. The Commissioner, as noticed hereinbefore, was the Chairman of the DPC. How the matter was referred to the DPC has not been disclosed. Even the affidavit affirmed by Shri Tayeng before the High Court in this behalf is silent.
The appointing authority, in absence of any delegation of power having been made in that behalf, was the State Government. The Government Order dated 12.01.1998 did not delegate the power of appointment to the Commissioner. He, therefore, was wholly incompetent to issue the appointment letters.
The respondents, therefore, in our opinion, were not entitled to hold the posts. In a case of this nature, where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility. It is true that where appointments had been made by a competent authority or at least some steps have been taken in that behalf, the principles of natural justice are required to be complied with.
We, as noticed hereinbefore, do not know as to under what circumstances the orders of appointments were issued. We in the facts and circumstances of this case do not see any arbitrariness on the part of the State in its action directing cancellation of appointments.
Thus, the impugned judgments cannot be sustained. They are set aside accordingly. The appeals are allowed.
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2007 (2) TMI 692 - SUPREME COURT
Challenging the partial award given by the Arbitration Tribunal - Whether against the order of partial award an appeal is maintainable directly u/s 37 of the of the Arbitration and Conciliation Act, 1996 (Act) Or Not - Jurisdiction by the Arbitral Tribunal in terms of Sub-section (2) of Section 16 of the Act - HELD THAT:- An appeal under sub-section (2) of Section 37 only lies if there is an order passed u/s 16(2) & (3) of the Act. Section 16(2) & (3) deals with the exercise of jurisdiction. The plea of jurisdiction was not taken by the appellant. It was taken by the respondent in order to meet their counterclaim. But it was not in the context of the fact that the Tribunal had no jurisdiction, it was in the context that this question of counterclaim was no more open to be decided for the simple reason that all the issues which had been raised in counterclaim Nos. 1 to 10 had already been settled in the minutes of meeting and it was recorded that no other issues to be resolved in 1st and 3rd contracts. Therefore, we fail to understand how the question of jurisdiction was involved in the matter.
In fact it was in the context of the fact that the entire counterclaims have already been satisfied and settled in the meeting that it was concluded that no further issues remained to be settled. In this context, the counterclaims filed by the appellant was opposed. If any grievance was there, that should have been by the respondent and not by the appellant. It is only the finding of fact recorded by the Tribunal after considering the counterclaim vis-a-vis the minutes of the meeting. Therefore, there was no question of jurisdiction involved in the matter so as to enable the appellant to approach the High Court directly.
Therefore, the question of jurisdiction in the present controversy did not arise because the counter-claim was opposed by the respondent-SAG as the same has since been stood settled. In view of the finding of fact recorded by the Tribunal that all the counter-claims stood covered by the decisions of the minutes of meeting though it was initially opposed by the respondent-SAG that it was not arbitrable or the Tribunal could not go into counter-claim, despite that it examined on the merit of the matter and on the merits the Tribunal disposed of the counter-claim by giving partial award. We fail to understand how can the appellant-NTPC can raise the question of jurisdiction and bring its case u/s 16(2) & (3).
We are satisfied that the view taken by the High Court is correct, appeal was not maintainable u/s 37(2) of the Act before the High Court and there is no ground to interfere with the order passed by the High Court.
Accordingly, the appeal is dismissed
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2007 (2) TMI 691 - COMPANY LAW BOARD, DELHI
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... ... ..... the cheques signing powers as per the earlier practice. (2)The four additional directors shall not participate in any Board meeting till their appointments are confirmed in the AGM. (3)The issue relating to charging of interest on the unpaid amount shall be again placed before the board with the participation of the special director appointed by BIFR and the decision taken thereat shall be binding on the company and the petitioners. (4)On or before 25-2-2007, the board of the company will hold a Board meeting to convene, not later than 31-3-2007, general meetings of the company for the years ended 25-3-2005 and 31-3-2006 successively on the same day, to transact all statutory businesses except adoption of accounts. The two AGMs will be convened with a gap of two hours. (5)Once the AGMs are convened, if the petitioners desire to have an independent Chairman to chair these meetings, they are at liberty to apply to this Board. 24. The petition is disposed of in the above terms.
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2007 (2) TMI 690 - DELHI HIGH COURT
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... ... ..... ducts, one of the appellants/plaintiffs and the other of the respondent/ defendant, are being sold at different prices itself ensures that there is no possibility of any deception/confusion, particularly in view of the fact that customer who comes with the intention of purchasing the product of the appellants/plaintiffs would never settle for the product of the respondent/defendant which is priced much lower. It is apparent that the trademarks on the two products, one of the appellants/plaintiffs and the other of the respondent/defendant, are totally dissimilar and different. 23. Consequently, we find no infirmity with the findings arrived at by the learned Single Judge at this stage, which are prima facie in nature. The learned Single Judge was justified in not granting temporary injunction in favor of the appellants/plaintiffs and directing defendant/respondent to maintain accounts of the sale. We, Therefore, dismiss this appeal leaving the parties to bear their own costs.
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2007 (2) TMI 689 - SUPREME COURT
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... ... ..... property on the premise that his mother has executed a Will in his favour on 3.10.1995. The said Will has not been proved. If the title claimed is on the basis of the Will, the same was required to be proved in the light of the provisions contained in Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. If the Will has not been proved, in the absence of such proof the general law of succession and inheritance shall apply. The plea of inapplicability of Section 43 of the Transfer of Property Act could have been taken by Harcharan Singh and not by the appellant, who has based his claim on the basis of the Will. The principle of feeding the estoppel will apply against Harcharan Singh and not against the appellant. He could not have, in our opinion, therefore, raised the said plea. 16. For the reasons aforementioned, we do not find any merit in this appeal, which is accordingly dismissed with costs. Counsel's fee is assessed at ₹ 5,000/-.
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2007 (2) TMI 688 - BOMBAY HIGH COURT
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... ... ..... the deeming fiction and hence recourse can be had to section 434(1)(a) as long as the money is legally recoverable from respondent Company. As money decree can be executed within period of 12 years, it is debt which can be recovered within 12 years and hence, limitation of 3 years is not at all relevant and reliance upon Article 137 of Limitation Act for this purpose is misconceived. 7. In the circumstances, petition is admitted. Petitioner Firm is permitted to issue public notice of this matter as per Company Court Rules, 1959 inviting all interested to appear and participate in further hearing. List the matter on 13-4-2007 for further consideration. 8. At this stage Advocate Manohar, for respondent seeks stay of this order for a period of four weeks to enable the respondent company to take appropriate steps. The request is opposed by Advocate Chandurkar, for petitioner. However, in order to give respondent a fair chance, present order is stayed for a period of four weeks.
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2007 (2) TMI 687 - BOMBAY HIGH COURT
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... ... ..... e is no dispute that pending the complaint under section 138 of the Negotiable Instruments Act by an order passed by the Gujarat High Court, respondent No. 1-company was directed to be wound up and the liquidator was appointed. Therefore, in view of the provisions of section 446, no civil suit or other legal proceeding could be continued without leave of the court, which had passed the order of winding up and had appointed the liquidator. Record reveals that in spite of taking time, the complainant has not secured leave from the Gujarat High Court which had passed the winding up order, to continue with the proceedings under section 138 of the Negotiable Instruments Act. Therefore, it becomes clear that the matter could not be proceeded with any more after the winding up order. Taking into consideration the above circumstances, it is difficult to find fault with the impugned order passed by the Metropolitan Magistrate. In the result, the revision application stands dismissed.
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2007 (2) TMI 686 - GUJARAT HIGH COURT
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... ... ..... erwise in the event the scheme of arrangement is approved, would not be in a position to have the correct view of the voice of the secured creditors, more particularly, in view of the statutory requirement of majority. 4. Therefore, considering the facts and circumstances, and without prejudice to the rights and contentions of the applicant as well as the Official Liquidator, as may be, in the winding-up proceedings qua assignment of the debt or otherwise, and without prejudice to the rights and contentions, as may be available to the applicant as well as to the OL in the matter when the Scheme of arrangement may be considered for grant of sanction or otherwise by this Court, it is hereby directed that the applicant shall be permitted to participate in the meeting dated 10.03.2007 of the secured creditors as representative of the debt, which was formerly of ICICI Bank, pertaining to the Company in liquidation. Application allowed to the aforesaid extent. No order as to cost.
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