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2008 (4) TMI 830
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... ... ..... easonably arrived at then the mere circumstance that the appellate Court would have taken a different view, would be no ground to interfere. In this connection, there is no dearth of authorities but to eschew prolixity, I am referring to only two of them i.e. Khedu Mohton v. State of Bihar AIR 1971 SC 66 1970(2) SCC 450 and C.Anthony v. K.G.Raghavan Nair 2002 ACJ 481 (S.C.) 2003(1) Civil Court Cases 1 (S.C.) 2003(1) Criminal Court Cases 90 (S.C.) 2003(1) SCC 1 AIR 2003 SC 182. In the case of C.Anthony, the Supreme Court has observed that unless the findings of the trial Court are perverse or contrary to the material on record, the High Court cannot in appeal substitute its findings, merely because another contrary opinion was possible on the basis of material on record. As stated earlier, the view taken by the learned Magistrate is a reasonable and possible view, hence, no interference is called for. 10. In this view of the matter, application for leave to appeal is rejected.
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2008 (4) TMI 829
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... ... ..... admittedly no appeal was filed by the Revenue challenging these two decisions, this Court dismissed the appeals filed by the Revenue in the case of P.R. Packaging (P) Ltd. (supra). The Customs, Excise Gold (Control) Appellate Tribunal in the present case also has accepted the appeal of the assessee relying on, amongst others, decision of the Tribunal in the case of Blue Star Ltd. (supra). The factual position in the present case being the same, in view of the aforementioned order of this Court in the case of P.R. Packaging (P) Ltd. (supra), these appeals are also dismissed. No costs.
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2008 (4) TMI 828
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... ... ..... ions is hypothetical. No action can be taken pursuant thereto or in furtherance thereof. It is not for this Court to even proceed in the matter any further, having regard to the nature of allegations made in the application for contempt. 23. Coming now to the contempt petition filed by the respondent, we are of the opinion that even no case for issuance of any notice has been made out. The order of injunction relate to existence of the structure, the validity thereof and/or the effect of such structure vis- -vis recognition/affiliation of the institution was not the subject matter of the civil Appeal. So long the structures are allowed to stand, the order of this Court cannot be said to have violated. 24. For the reasons aforementioned we do not find any merit in any of these petitions. They are dismissed accordingly leaving the parties to pursue their remedies which are available to them in law. In the facts and circumstances of the case, there shall be no order as to costs.
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2008 (4) TMI 827
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... ... ..... shall be prima facie evidence of his title to such shares. The certificates are the only documentary evidence of title in possession ol any shareholder, which are not forthcoming from the petitioner. There is also no material substantiating the payment of fair value of 23,200 shares by the petitioner in favour of the respondents 2 3. 5. In view of my foregoing conclusions, the petitioner's assertion, being a shareholder of the Company must fail. Having found that the acquisition of 23,200 shares by the petitioner is in gross violation of the articles of association of the Company, the petitioner has no right to apply under Sections 307 398 of the Act and therefore, the company petition stands dismissed for want of any locus standi on the part of the petitioner. As a result, the application for impleadment of Smt. S. Swetha, wife of the second respondent (C.A. No. 41/2008) does not survive. In view of this the interim order dated 24.12.2007 is vacated. Ordered accordingly.
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2008 (4) TMI 826
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... ... ..... t of the trust, if created, remains to be executed; (d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years form the date of he deceased's death. (e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion; (f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) once execution and attestation are proved, suspicion of delay no longer operates. 17. The conclusion 'b' is not correct while the conclusion 'c' is the correct position of law. 18. In view of the factual scenario, the right to apply actually arose on 9.8.1999 when the proceedings were withdrawn by Smt. Nirmal Jeet Kaur. Since the petition was filed within three years, the same was within time and therefore the appeal is without merit, deserves dismissal, which we direct but in the circumstances without any order as to costs.
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2008 (4) TMI 825
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... ... ..... n not having been defined, no decree could be passed against him for the execution of the mukarrari patta. In the aforementioned situation it was held that agreement of sale cannot be enforced against the defendant No. 1 therein. Such is not the position here. 30. The question which now arises for consideration is as to whether in a situation of this nature the Court shall exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963. 31. The agreement was entered into in the year 1978. The suit had been decreed on 7th February, 1981. Respondents' father had been put in possession of the property. No suit has been filed by the alleged coparceners of the defendant/appellant so long. There was, therefore, in our opinion, no reason as to why the judgment and decree passed by the learned trial court should be interfered with. 32. For the reasons abovementioned the appeal fails and is dismissed with costs. Counsel's fee assessed at Rs. 10,000/-.
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2008 (4) TMI 824
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... ... ..... 7 of the Code of Civil Procedure was rightly rejected by the Appellate Court as well as by the High Court, we set aside the order of the High Court as well as of the appellate Court rejecting the application under Order 41 Rule 27 of the Code of Civil Procedure and we direct that the appellate Court shall decide the pending appeal along with the application under Order 41 Rule 27 of the Code of Civil Procedure on merits within a period of three months from the date of supply of a copy of this order to the appellate court. The appeal is allowed to the extent indicated above. There will be no order as to costs. 6. The view that we have expressed can be supported by a decision of this Court in the case of Jaipur Development Authority v. Kailashwati Devi AIR1997SC3243 . 7. We make it clear that we have not gone into the merits of the application under Order 41 Rule 27 of the Code of Civil Procedure which is kept open to be decided by the appellate court while deciding the appeal.
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2008 (4) TMI 823
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... ... ..... t. All the other factual findings regarding the mala fides on the part of the defendant No. 3 (appellant herein) or the so-called designs by her to protract the suit go in the background once it is held that she did not have any notice of the transfer. It was the duty of the Registrar of the Delhi High Court and further it was the duty of the court presiding, i.e., the Additional District Judge to see that the decree is passed only after the proper service. In the absence of a notice, we do not see any justification to pass the ex-parte decree and, therefore, we are of the clear opinion that both the courts below have erred in rejecting the application under Order IX Rule 13. In our opinion the non service of the notice was a sufficient reason to set aside the decree against the defendant No. 3 (appellant herein). 16. In view of the above we set aside both the orders of the courts below and allow the application under Order IX Rule 13. Counsel's fee fixed at Rs. 10,000/-.
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2008 (4) TMI 822
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... ... ..... ted the other line of reasoning, following the judgment in Tuticorin's case (supra). 14. Therefore, when there are two sets of judgments of Hon'ble Supreme Court, proceeding on different lines, of reasonings, and both stand on their own logical footing, and in that event, if the learned Tribunal has accepted one line of reasoning, supported by one set of judgments, it cannot be said, that the learned Tribunal was legally not justified in following the decision, as followed by it, simply because it might have been possible, or might be more appropriate to follow the other set of judgments, by following the other line of reasoning. 15. We may make it clear here, that we should not be understood to be deciding the question of law, as to whether, in such circumstances, the receipt would be revenue receipt or capital asset. 16. In that view of the matter, the questions, as framed, are also decided in favour of the assessee, and against Revenue, and the appeal is dismissed.
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2008 (4) TMI 821
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... ... ..... Kumar v. Patel Keshavlal 2000 Cri L.J. 3547 held that the period of 15 days envisaged by Section 138(c) of the N.I. Act will begin to run on the day next to the day on which the service of notice has been effected. Thus, if the petitioner has received the notice on 01-12-1997 then he is entitled to exclude that day for the purpose of computation of the period of time within which payment is to be made. Complaints were filed on 15-12-1997. Therefore, it clearly appears that the petitions of complaint were premature and they could not be treated as complaints in the eye of law. 9. In such circumstances, the revisional applications are allowed. 10. The Criminal proceedings are quashed. A copy of the judgment shall be sent to the learned Judicial Magistrate concerned for information and necessary action. Accused persons shall be deemed to have been discharged from bail bonds. 11. Urgent xerox certified copies, if applied for, be given to the parties as expeditiously as possible.
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2008 (4) TMI 820
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... ... ..... ved supra, this Court endorses the views expressed by the learned Counsel for the Society in his letter dated 5.8.1989 addressed to the Secretary to Government, Revenue Department, taking strong exception to the affixture of notice on his office door. Though it is a recognised mode of service insofar as parties to a lis are concerned, such procedure should not be followed in respect of the Advocates, who are the officers of the Court and the legal voices of a client before a Court of Law and therefore, we hope that the Government will avoid such unpleasant incidents, at least in future and respect the high tradition of the noble profession of advocacy, by issuing strong instructions to its subordinates, not to repeat such things at least in future. With such observations, the W.As. No. 1030/98 and 1031/98 are allowed and W.A.1465/98 is dismissed as not pressed. The orders passed by the learned single Judge are set aside. No costs. Connected Miscellaneous Petitions are closed.
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2008 (4) TMI 819
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... ... ..... ant was unwilling either to transfer them or sell them, and therefore filling up the blank cheque after two years he has filed this case. There is evidence on record to point out handing over of share certificates. Thus, the accused-respondent has discharged the initial onus of proof. Considering the case on factual basis, I find that the appellant has not satisfactorily discharged the burden of proof. In this view of the matter, I need not find it necessary to go into the bye-laws relating to the dealings in the stock exchange. Non-production of the pass book by the appellant in relation to the amount lent by him to the respondent through cheques, is fatal to the case of the complainant/appellant. As such, the appellant has failed to discharge his burden by producing documentary evidence before the Court below. Hence, viewed from any angle, I do not find any good reasons to interfere with the order of acquittal passed by the Court below. Accordingly, the appeal is dismissed.
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2008 (4) TMI 818
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... ... ..... ned to take over possession of the property and had threatened to kill the appellants like birds. 4. It is contended by the learned Counsel for the appellants that the appellants have been falsely implicated as the other party was the attackers and in the process of their attack five persons died and a number of other persons were seriously injured. 5. On a plain reading of the FIR which was lodged on the same day, i.e. on 12.12.2005, it is apparent that the accused-appellants were named as the persons who had caused serious injuries to Ajay Sharma, nephew of the complainant, who later on succumbed to injuries. When the appellants have been named in the FIR which was lodged immediately after the incident, at this stage we do not find any infirmity in the impugned order of the High Court and that of the Sessions Court whereunder the accused-appellants were not released on bail. 6. For the aforesaid reasons, we do not find any merit in the appeal. It is, accordingly, dismissed.
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2008 (4) TMI 817
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... ... ..... draw the said option again during the remaining part of the financial year. Of course, withdrawing of the option initially exercised in April was also not available to them, when they did so in May, but we find that such withdrawal cannot be compelled by the Revenue inasmuch as the appellant started paying higher rate of duty. As such, there was no alternative available to the Revenue to stop the assessee from withdrawing such an option. As regards the withdrawal of second option exercised by them in May ‘04, same has to be stopped and the consequences arrived at, which resulted in confirmation of demand of duty against the appellant. We, accordingly, confirm the duty demand of ₹ 53,448/-. 5. However, we find that the issue involved is bona fide interpretation of notification and does not call for imposition of any penalty upon the appellants. The same is, accordingly, set aside. 6. Appeal is disposed off in above terms. (Pronounced in Court on 3-4-2008)
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2008 (4) TMI 816
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... ... ..... rn handed over to the complainant. This aspect has not been brought out in the evidence of either PW1 Abdul nor in the evidence of complainant. On the other hand, the case of the accused is that the cheque was in the custody of PW 1 Abdul by way of part payment for motorcycle. The account of the accused on which the cheque came to be drawn, shows that the account was for a special purpose i.e. for payment of monthly installments to Sadguru Finance Company in respect of loan for vehicle. It was special account and cheque book was issued in respect of the said special account. The learned Magistrate has acquitted the respondent No. 1 accused on the basis of above facts and the other facts which have been brought out in the evidence. Looking to the evidence on record, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view, hence, no interference is called for. 6. In this view of the matter, application for leave to appeal is rejected.
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2008 (4) TMI 815
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... ... ..... order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities. 24. For the reasons aforementioned, we do not find any merit in this appeal. It is dismissed accordingly. As the respondent has not appeared, there shall be no orders as to costs.
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2008 (4) TMI 814
Order of acquittal passed on non-appearance or death of the complainant - Power of Jurisdiction of magistrate U/s 256 of CrPC - HELD THAT:- The provisions of Section 256(1) mandate the Magistrate to acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out the discretion conferred upon the learned Magistrate, however, must be exercised with great care and caution. The conduct of the complainant for the said purpose is of immense significance. He cannot allow a case to remain pending for an indefinite period. Appellant had been attending the court for a long time, except on some dates where when remained absent or was otherwise represented by his Advocate.
He had to remain present in court. He attended the court on not less than 20 occasions after the death of the original complainant. If in the aforementioned situation, the learned Magistrate exercised his discretionary jurisdiction, the same, in our opinion, should not have been ordinarily interfered with.
The High Court failed to take into consideration the fact that it was dealing with an order of acquittal and, thus, the principle of law which was required to be applied was that, if two views are possible, a judgment of acquittal should not ordinarily be interfered with.
There exists a distinction between a civil case and a criminal case. Speedy trial is a fundamental right of an accused. The orders passed by the competent court of law as also the provisions of Code of Criminal Procedure must be construed having regard to the Constitutional scheme and the legal principles in mind.
The High Court, in our opinion, therefore, misdirected itself in passing the impugned judgment.
It can therefore not be sustained. We set aside the order of the High Court accordingly. The Appeal is allowed.
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2008 (4) TMI 813
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... ... ..... he Court's jurisdiction to entertain and decide a matter, as otherwise, the decision rendered without jurisdiction will be a nullity. However, we are not required to elaborate on the said proposition, inasmuch as, in the instant case such a plea had been raised and decided by the Trial Court but was not reversed by the First Appellate Court or the High Court while reversing the decision of the Trial Court on the issues framed in the suit. We, therefore, have no hesitation in setting aside the judgment and decree of the High Court and to remand the suit to the First Appellate Court to decide the limited question as to whether the suit was barred by limitation as found by the Trial Court. Needless to say, if the suit is found to be so barred, the appeal is to be dismissed. If the suit is not found to be time-barred, the decision of the First Appellate Court on the other issues shall not be disturbed. The appeal is accordingly allowed, but there will be no order as to costs.
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2008 (4) TMI 812
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... ... ..... atically fall and no cognizance thereof can be taken. 16. It may also be pertinent to note here that Revenue had also realised its mistake of sending invalid and incomplete notice to the assessee under Section 148 of the Act, and therefore the Commissioner of Income Tax (Appeals) while passing order dated 04.12.1098 had granted an opportunity to the Assessing Officer to issue fresh notice if so advised, but unfortunately' the Revenue did not rise to the occasion and did not take benefit of the opportunity extended to it by the Commissioner of Income Tax. It rather sat quiet over the matter. Para 7 of the older passed by the Commissioner of Income Tax (Appeals) deals elaborately with this aspect of the matter. 17. In view of this, questions of law as have been projected in the two appeals are to be answered in favour of the assessee and against the Revenue. We accordingly do so. Appeals stand disposed of. Copy of the order be retained in connected appeal, i.e., No.22/2003.
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2008 (4) TMI 811
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... ... ..... Exit Scheme, 2005” undertaking to contribute the compensation in terms of this order, before getting the name of the company stuck off from the register of companies under section 560 of the Act, through the operation of the “Simplified Exit Scheme, 2005”. (v) The board of directors of the company shall distribute the sale proceeds of the properties of the company in favour of all the shareholders in proportion to their shareholding, after meeting the statutory liabilities and expenses if any, before availing of the benefit of the “Simplified Exit Scheme, 2005”. (vi) The Bench Officer shall forward a copy of the order to the Registrar of Companies, Karnataka at Bangalore, for appropriate action, in pursuance of the directions, as per clauses (i) and (iv) here above. 10. With the above directions the company petition and the connected applications are disposed of, without any order as to costs. In view of this, all the interim orders are vacated.
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