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2009 (4) TMI 1044
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... ... ..... he co-accused by the learned ASJ. If there is a challenge by the DRI to those orders such challenge will be considered by this Court on its merits. 11. The submission that Petitioners have been proceeded against under Section 135 Customs Act, 1962 and not for any IPC offence for commission of forgery and therefore the offence is not a grave one does not impress this Court. The manner of commission of offence which has resulted in large scale loss of revenue is grave enough for declining the prayer of the Petitioners for bail at this stage. 12. For the aforementioned reasons, this Court is not inclined to release the Petitioners on bail. It is however made clear that nothing contained in this order is intended to influence the opinion to be formed by any subordinate court when approached for similar relief by either of the Petitioners at a subsequent stage. Such prayer will be considered on its merits independent of the present order. 13. The petition is accordingly dismissed.
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2009 (4) TMI 1043
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... ... ..... , there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession. 46. The general principle of law is that in case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. In view of the facts and circumstances of the present case, it is not clear that the defendant has proved the ouster or exclusion of the plaintiff in respect of the suit property. Therefore, this application has no force in law and the same is dismissed accordingly. C.S. OS No. 1695 of 2006 47. List on 01.07.2009 to await the report of the local commissioner.
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2009 (4) TMI 1042
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... ... ..... em under Section 40 FERA, which were subsequently retracted, were not voluntary and the Directorate of Enforcement had not discharged the burden of showing that they were. 26. In Mohtesham Mohd. Ismail, the Supreme Court held that in an appeal under Section 54 FERA, the High Court should exercise its appellate power only “when there existed a question of law and not a question of fact.” Even under Section 35 FEMA, an appeal will lie only in regard to a “question of law arising out of such order appealed against.” In the present case, the appellant has been unable to point out any such question of law that arises for determination from the impugned order of the Tribunal. What has been pointed out are essentially questions of fact, involving the appreciation of evidence. 27. Viewed from any angle, therefore, this Court does not find any error in the impugned judgment of the Tribunal. Consequently these appeals are without merit and are dismissed as such.
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2009 (4) TMI 1041
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... ... ..... ould be spelt out from the order passed by the court. 13. In the facts in hand, the learned trial Court has given a complete go bye to the essential requirements of Section 256 of the Code and did not record the reason whether the presence of complainant was essential for the progress of the case, which on facts was not; therefore, the impugned order is indefensible, thus unsustainable, thus, set- aside. Consequently, the complaint aforesaid is remanded back to the learned trial court for its disposal in accordance with law. It shall be entered against its original number. 14. Parties are directed to be present before the learned trial court on 23.4.2009. 15. The Registrar General of this Court is directed to circulate the copy of this judgment to all the subordinate courts, to adhere to the provisions of Section 256 of the Code, in the light of the observations made hereinabove. 16. Records of the Courts below be returned forthwith. Accordingly the matter stands disposed of.
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2009 (4) TMI 1040
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... ... ..... concerned accused persons guilty has to be considered at the time of trial. At the time of framing the charge it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At that stage also evidence cannot be gone into meticulously. It is immaterial whether the case is based on direct or circumstantial evidence. Charge can be framed, if there are materials showing possibility about the commission of the crime as against certainty. That being so, the interference at the threshold with the F.I.R. is to be in very exceptional circumstances as held in R.P. Kapoor's case supra. 10. Ultimately, the acceptability of the materials to fasten culpability on the accused persons is a matter of trial. These are not the cases where it can be said that the FIR did not disclose commission of an offence. Therefore, the High Court was not justified in quashing the FIR in the concerned cases. 11. The appeal is allowed.
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2009 (4) TMI 1039
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... ... ..... amount was received on termination of re-insurance division of the assessee company as capital receipt? 2. So far as question-A is concerned, learned counsel for the assessee has brought to our notice that the said question is covered by this Court in C.I.T. v. Ambalal Kilachand, (1995) 81 Taxman 435 (Bom). In this view of the matter, the said question can hardly be said to be a substantial question of law. 3. So far as question-B is concerned, learned counsel for the assessee submits that this question is covered by the judgments of this Court in C.I.T. v. Acme Manufacturing Co., 249 ITR 460; C.I.T. v. Chemet, 240 ITR 624; and C.I.T. v. Gannon Dunkerly & Co., 114 CTR 56. 4. So far question-C is concerned the same is also covered by the judgment of this Court in the case of C.I.T. v. Narendra D. Desai, (2008) 214 CTR 190. 5. In the above view of the matter, no substantial question of law is involved in this appeal. Appeal is dismissed in limine with no order as to costs.
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2009 (4) TMI 1038
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... ... ..... I.T.A.T. is right in directing the A.O. to tax the dividend income on net basis? 2. The learned counsel for the assessee has brought to our notice that the aforesaid question is covered by judgment of this Court in C.I.T. v. Ambalal Kilachand, (1995) 81 Taxman 435 (Bom). In this view of the matter no substantial question of law is involved in this appeal. Appeal is dismissed in limine with no order as to costs.
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2009 (4) TMI 1037
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... ... ..... at the defendant's argument that the interpretation adopted by the court, defeats its right to carry on trade, business or profession, has no force; it accordingly fails. The issue is answered in the negative, against the defendant. Issue Nos 5 & 6 (5) Whether the plaintiff is entitled to injunction as claimed ? OPP (6) Relief, if any. 87. Normally, in view of the decision on the other issues, the plaintiffs would have been entitled to relief in the suit. However, since the defendant has contested that the plaintiffs are not copyright owners of all the works claimed by them, the matter would necessarily require recording of evidence. Therefore, no final relief can be granted. However, the ad-interim injunction granted earlier, is hereby confirmed and shall bind the defendant till disposal of the suit. The Registry is directed to list the suit for further proceedings, before the appropriate Bench, subject to orders of Hon'ble the Chief Justice, on 27th April, 2008.
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2009 (4) TMI 1036
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... ... ..... s of political parties, the business community did not consider it proper to open shops etc. Therefore, the ratio of Mohd. Aslam's case and other precedents referred to in that judgment cannot be applied to this case for framing charges against respondent Nos. 1 to 5 on the premise that they have committed contempt within the meaning of Section 2(b) of the 1971 Act. 42. Insofar as respondent No. 6 is concerned, charge cannot be framed against him with reference to Section 2(c) of 1971 Act because the petitioners have not produced any legally admissible evidence to prove the contents of the speech allegedly made by the said respondent. The judgments in Aswini Kumar Ghose v. Arabinda Bose (supra) and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar (supra) do not have any bearing on this case and, therefore, we do not consider it necessary to deal with the same. 43. In the result, the contempt petitions are dismissed. However, the parties are left to bear their own costs.
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2009 (4) TMI 1035
Dishonor of Cheque - discharge of legally enforceable debt or not - acknowledgment of debt in terms of Section 18 of Limitation Act 1963 or not - time limitation - HELD THAT:- One thing which is important and can be taken note of is that neither in the complaint nor in the notice nor in the affidavit it has been stated that the debt which became time barred i.e. the amount which was paid by the complainant to petitioner No. 1 at the asking of petitioner No. 2 on 1.2.2002 was ever acknowledged within the period of limitation so as to keep the liability alive.
On perusal of the complaint and other documents show that the complainant had paid a sum by way of cheque to petitioner No. 1 at the asking of petitioner No. 2 somewhere in January, 2002 and the said cheque was credited in the account of petitioner No. 1 on 1.2.2002 and was payable after six months and was not paid within three years from 31.8.2002 that is the period within which it was under limitation and as such the loan became time barred as on 31.8.2002.
It is also clarified that first two cheques which stated to have been paid to the complainant by the petitioners were paid on 27.4.2006 and 31.5.2006. Thus those cheques were paid after three years of the friendly loan having became time barred. Similarly, the cheques issued in lieu of the original cheque i.e. a cheque bearing No. 817773 dated 30-08-2006 and another cheque bearing No. 350562 dated 05-05-2007.
Section 18 of the Limitation Act clearly goes to show that for analyzing the limitation of a civil liability beyond a period of three years, the acknowledgement, if any, must be there before period of limitation is over, which is not the case.
It may also be relevant to take note of the judgment delivered by the Bombay High Court in Smt. Ashwini Satish Bhat v. Shri Jeevan Divakar Lolienkar and Anr.[1999 (2) TMI 699 - BOMBAY HIGH COURT], wherein also in a similar case when a cheque was dishonoured which issued beyond the period of limitation the appeal filed by the complainant was dismissed.
No contrary judgment has been cited on behalf of the complainant/respondent. Accordingly the petition is allowed. The complaint dated 13.12.2007 and all the proceedings emanating therefrom are hereby quashed.
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2009 (4) TMI 1034
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... ... ..... ce policy would be operative from that time and not from the previous midnight as was the case in Ram Dayal case where no time from which the insurance policy was to become effective had been mentioned. It was held that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following, but in cases where there is a mention of the specific time for the purchase of the policy, then a special contract comes into being and the policy becomes effective from the time mentioned in the cover note/the policy itself. The judgment in Jikubhai case has been subsequently followed in Oriental Insurance Co. Ltd. v. Sunita Rathi AIR1997SC4228 by a three-Judge Bench of this Court also. 6. Since the effect of the aforesaid factual, position has not been considered by the High Court we set aside the impugned judgment and remit the matter for fresh consideration in accordance with law. 7. The appeal is disposed of.
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2009 (4) TMI 1033
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... ... ..... to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on 'when the plaintiff has notice that performance is refused'. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression 'date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits. 8. The reference is disposed of accordingly.
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2009 (4) TMI 1032
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... ... ..... n the year under consideration i.e. August 2002. The amount was raised vide invoice datedSeptember 19, 2002 and, therefore, the same was allowable as deduction in the assessment year under consideration with a view to the decision of Gujarat High Court in the case of Saurashtra Cement and Chemical Industries Ltd. vs. CIT 213 ITR 523 (Guj.), Supreme Court judgment in the case of Nonsuch Tea Estates Limited vs. CIT, Madras 98 ITR 189 (SC) and Rajasthan High Court in the case of Addl.CIT vs. Farasl Limited 163 ITR 364 (Raj.). The CIT (Appeals), in our opinion, was, therefore, justified in allowing the claim of the assessee and accordingly the order of the CIT (Appeals) is upheld. 11. In the result, the appeal of the revenue is dismissed. 12. To sum up ITA No.2403/Del/2008 filed by the assessee is allowed, ITA No.1561/Del/2008 of the assessee is partly allowed and ITA No.1216/Del/2008 filed by the revenue is dismissed. Order pronounced in open court on this 2nd day of April 2009.
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2009 (4) TMI 1031
Bail Application - FIR was initially registered for offences u/s's 147, 148, 149 and 307 of the IPC - subsequently, on death of two injured persons, Section 302, IPC was also added - Whether having regard to the nature of the offences the second respondent has been charged with the background in which these were committed and the stage of the trial, the High Court was justified in granting bail to the said respondent and set him free? - appellant had gone to the shop where one Basiruddin also came - Anzar’s (shopkeeper) refusal to sell goods to him on credit, Basiruddin started beating him, on which the appellant intervened - Being annoyed Basiruddin accompanied by 21 other persons, including the second respondent armed with guns and country made firearms - seeing this, appellant rushed to the house of his brother Qayyum - All the said 22 persons attacked the house of Qayyum - As per the medical reports, the injured persons sustained gunshot injuries which were grievous in nature - later on, Rizwan and Anzar Hussain died.
HELD THAT:- Normally this Court does not interfere with the order of the High Court relating to grant or rejection of bail but in the instant case, having carefully gone through the impugned order, we are constrained to observe that the High Court has completely ignored the basic principles which are to be kept in view while dealing with an application filed u/s 439 of the Code for grant of bail and has thus, committed a manifest error in the matter of grant of bail to the second respondent, warranting interference by this Court.
The background of the incident, the nature of the assembly, the nature of the arms carried by the accused and the manner in which the offences were committed, prima facie, reflect the character and the conduct of the accused for whom perhaps refusal by the shopkeeper to sell goods on credit was a challenge to their authority and the power they wielded in the area. Be that as it may, the significant feature of the case is that the learned Judge, except for recording the submissions of counsel for both the parties, has not indicated any reason whatsoever for grant of bail.
This is manifest from the afore extracted order that there is no consideration of any of the factors, like nature of the offence; the evidence collected by the prosecution and forming part of the chargesheet and the circumstances under which the offences were committed, all relevant for deciding the question whether the bail should be granted or not.
In our opinion, failure on the part of the learned judge in not indicating any reason for grant of bail particularly when charges against the second respondent are serious, makes his order indefensible. As observed by this Court in Puran’s case [2001 (5) TMI 971 - SUPREME COURT OF INDIA], giving reasons is different from discussing merits or demerits. At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case is not to be undertaken but that does not mean that while granting bail some reasons for prima facie concluding why bail was granted are not to be indicated, which is the case here.
For the foregoing reasons, the appeal is allowed and the impugned order granting bail to the second respondent is set aside. The bail bond and surety furnished by the said respondent in terms of the High Court’s order stand cancelled and it is directed that he shall be taken into custody forthwith.
We may also clarify that if in future any application for grant of bail is filed by the second respondent, it shall be considered on its own merits, uninfluenced by this order.
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2009 (4) TMI 1030
Motor accident claim - Claim for compensation on death of dependency - quantum of compensation so awarded - Application seeking increase in compensation - Principles relating to assessment of compensation in cases of death - HELD THAT:- The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
Addition to income for future prospects - In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years.
Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
Deduction for personal and living expenses - We are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself.
However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
Selection of Multiplier - The principles relating to determination of liability and quantum of compensation are different for claims made u/s 163A of MV Act and claims u/s 166 of MV Act. Section 163A and Second Schedule in terms do not apply to determination of compensation in applications u/s 166.
Computation of compensation - In this case as noticed, the salary of the deceased at the time of death was ₹ 4,004. By applying the principles enunciated by this Court to the evidence, the High Court concluded that the salary would have at least doubled (₹ 8008/-) by the time of his retirement and consequently, determined the monthly income as an average of ₹ 4004/- and ₹ 8008/- that is ₹ 6006/- per month or ₹ 72072/- per annum. We find that the said conclusion is in conformity with the legal principle that about 50% can be added to the actual salary, by taking note of future prospects.
In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the High Court in the year 1989-90, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales.
If the contention urged by the claimants is accepted, it would lead to the following situation: The claimants only could rely upon the pay scales in force at the time of the accident, if they are prompt in conducting the case. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore reject the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation.
As contended that having regard to the fact that the family of deceased consisted of 8 members including himself and as the entire family was dependent on him, the deduction on account of personal and living expenses of the deceased should be neither the standard one- third, nor one-fourth as assessed by the High Court, but one-eighth. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed one-third in all cases (unless the calculation is under section 163A read with Second Schedule to the MV Act). The percentage of deduction on account personal and living expenses can certainly vary with reference to the number of dependant members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependants.
As an earning member, the deceased would have spent more on himself than the other members of the family apart from the fact that he would have incurred expenditure on travelling/transportation and other needs. Therefore we are of the view that interest of justice would be met if one-fifth is deducted as the personal and living expenses of the deceased. After such deduction, the contribution to the family (dependants) is determined as ₹ 57,658/- per annum. The multiplier will be 15 having regard to the age of the deceased at the time of death (38 years). Therefore the total loss of dependency would be ₹ 57,658 x 15 = ₹ 8,64,870/-.
In addition, the claimants will be entitled to a sum of ₹ 5,000/- under the head of `loss of estate' and ₹ 5000/- towards funeral expenses. The widow will be entitled to ₹ 10,000/- as loss of consortium. Thus, the total compensation will be ₹ 8,84,870/-. After deducting ₹ 7,19,624/- awarded by the High Court, the enhancement would be ₹ 1,65,246/-.
We allow the appeal in part accordingly. The appellants will be entitled to the said sum of ₹ 165,246/- in addition to what is already awarded, with interest at the rate of 6% per annum from the date of petition till the date of realization. The increase in compensation awarded by us shall be taken by the widow exclusively.
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2009 (4) TMI 1029
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... ... ..... the main application filed by the plaintiff under Order 22 Rules 4 and 9 CPC wherein the specific prayer has been made that the abatement be set aside, the present application, in my considered opinion, should be allowed. 17. For the reasons stated in the application, I am of the opinion that the plaintiff has shown the sufficient cause for condoning the delay in filing of the application under Order 22 Rules 4 and 9 CPC for bringing on record the legal heirs of deceased defendant No. 1 on record. The application is accordingly allowed subject to payment of cost of ₹ 10,000/- to be deposited in the Delhi High Court Legal Services Committee within four weeks from today. The legal representatives of deceased defendant No. 1 as mentioned in the application be brought on record. Applications stand disposed of accordingly. C.S. OS No. 1578/1992 Amended memo of parties filed is taken on record. List this matter before the Joint Registrar on 01.07.2009 for further proceedings.
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2009 (4) TMI 1028
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... ... ..... of the assessee i.e. the MAT credit under Section 115JAA should be given effect to before charging the interest under Section 234B and 234C. Rule 12(1)(a) and Form-I cannot go beyond the provisions of the Act. Form-I cannot lay down the order of priority of adjustment of TDS, advance Tax, MAT credit under Section 115JAA which is contrary to the provisions of the Act. The order passed by the Tribunal is in accordance with law and we do not find any error or illegality in the order of the Tribunal so as to warrant interference. Accordingly, we answer the questions 2 and 3 also in favour of the assessee and as against the Revenue. Thus both the questions of law have been answered against the revenue in favour of the assessee. 6. The questions of law in this case also are identical to the one considered by the Division Bench. Following the Division Bench Judgment cited supra, the appeal is dismissed since the questions of law have already been answered in favour of the assessee.
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2009 (4) TMI 1027
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... ... ..... ing in the rivers. As held already the rivers are natural resources of the nation as well as the entire world and they cannot be allowed to be damaged in a particular State as against the other States. Rivers and other water resources are dwindling coupled with the increase in demand for water due to ever growing population. It is to be noted that even in the counter affidavit it has been stated by the respondents that the dealers and businessmen are trying to make huge profits by selling not only the sand from the Government but also indulging in indiscriminate quarrying and transporting the same in the guise of a valid permit. Hence, we are of the opinion that taking into consideration of the overall public interest the impugned Rule will have to be sustained. 20. For the reasons stated above, we are of the opinion that the writ petitions are liable to be dismissed. Accordingly, the same are dismissed. No costs. Consequently, connected miscellaneous petitions are dismissed.
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2009 (4) TMI 1026
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... ... ..... id classification of the penal law which are ex post facto (i) when they make criminal an act which was innocent when done; (ii) when they make a crime greater than it was when it was committed; (iii) when they make the punishment greater than the punishment was at the time the act was committed; (iv) when they change the rule of evidence as to deprive a defendant of a substantive right; and (v) when they make retrospective qualifications for an offence which are out a proper exercise of the police power. Under Article 20(1) of the Constitution what is prohibited is the conviction and sentence in criminal proceedings under ex post facto law. 12. Considering the quantity of illicit liquor seized and the passage of time, while upholding the conviction, we restrict the period of sentence to the one already undergone. 13. The bail bonds executed to give effect to the order of bail dated 09th September 2002 shall stand discharged. 14. The appeal is allowed to the aforesaid extent.
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2009 (4) TMI 1025
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... ... ..... ainst persons and authorities whose conduct comes into consideration before Courts of law unless it is really necessary for the decision of the case as an integral part thereof. The direction of the High Court placing copy of their order on the personal/service record of the appellant and a further direction for placing copy of the order before the Inspecting Judge of the officer for perusal that too without giving him an opportunity would, undoubtedly, affect his career. Based on the above direction, there is every possibility of taking adverse decision about the performance of the appellant. We hold that the adverse remarks made against the appellant was neither justified nor called for. 14. In the interest of justice and fairness, we expunge the offending remarks made against the appellant in para 10 of the impugned order of the High Court of Delhi, dated 06.07.2006. Since these appeals are confined only to expunging of the adverse remarks, the same are allowed. No costs.
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