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Indian Laws - Case Laws
Showing 61 to 80 of 683 Records
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2016 (12) TMI 306 - KERALA HIGH COURT
Confiscation of a seized car - involvement in a case under Section 55(a) of the Abkari Act - Held that: - if the owner of the vehicle is unable to establish that the person in charge of the vehicle had taken all reasonable and necessary precautions against use of the vehicle for commission of any offence, the vehicle is liable to be confiscated, even if the same had been used for commission of the offence without his knowledge.
In the instant case, going by the admitted case, the offence is alleged to have been committed by the person in charge of the vehicle. When the person in charge of the vehicle himself is an accused, the petitioner cannot avoid an order of confiscation on the ground that the offence has been committed without his knowledge. There is yet another reason also for me to come to the said conclusion. Exts.P1 and P3 orders indicate that Biju, to whom the vehicle has been entrusted, was an accused in a similar case earlier also, where the allegation is that he possessed 3570 litres of spirit. The petitioner has no case that his wife was not aware of the involvement of his brother in a similar case at the time when the vehicle was entrusted to him. As such, even if it is assumed that the wife of the petitioner was the person in charge of the vehicle, it cannot be said that she had taken all reasonable and necessary precautions against use of the vehicle for commission of offences under the Act while entrusting the vehicle to the brother of the petitioner. Exts.P1 and P3 orders, in the circumstances, are in order. The writ petition is without merits and the same is, accordingly, dismissed.
Decided against petitioner-assessee.
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2016 (12) TMI 253 - GUJARAT HIGH COURT
Issuance of the notices under section 13(2) of the SARFAESI Act seeked to be set aside - present petition invoking writ jurisdiction of this Court under Article 226 - Held that:- It is trite that in all the area of matters involving commercial disputes, the rule of alternative remedy has to be adhered to steadfast, instead of allowing the petitioners to straightway approach the High Court in a writ jurisdiction. In this view of the matter, the petitioners are required to be relegated to the said remedy and the present petition is not liable to be entertained. All the contentions on merits are open to be raised by both the parties before the Tribunal.
In the aforesaid view, this petition is dismissed, relating the petitioners to avail the remedy under Section 17 of the SARFAESI Act, 2002. It is clarified that this Court has not gone into the merits of the case. The petition stands dismissed of as not entertained subject to above.
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2016 (12) TMI 185 - ANDHRA PRADESH HIGH COURT
Professional misconduct by chartered accountant - gross negligence and professional misconduct by respondent, a Chartered Accountant - Held that:- The specific omissions or commission attributed to the respondent are as follows:
(1) The respondent issued a certificate, being the statutory Auditor of Ritesh Polysters Limited, which formed the basis for issuing a notification inviting the general public to contribute to the share capital, without verifying actual receipt of cash of ₹ 4.50 crores for allotment of 15,00,000 shares to the promoters worth ₹ 2,25,00,000/-, and the cheques issued by the promoters bounced later.
(2) Respondent issued a certificate without qualifying that allotment of shares to the promoters was subject to realisation of cheques.
(3) The respondent did not verify the individual bank accounts of the promoters to ascertain whether there was sufficient balance in their account to ensure that the cheques would be honoured, by the payee bank, on its presentation.
(4) Respondent failed to verify actual receipt of cash while allotting shares.
(5) Contribution of ₹ 2,25,00,000/- as promoters contribution by Ritesh Exports was not examined, similarly routing of ₹ 22,00,000/- through M/s Pratha Investments (owned by the wife of the respondent and being managed by the respondent himself) to the promoters Sri Deepak Agarwal and Sri Ritesh Agarwal, who allegedly contributed ₹ 10,50,000/- each was also not examined. Thus, the said investment of Rs . 22,00,000/- by Sri Deepak Agarwal and Sri Ritesh Agarwal was only a book entry without actual receipt of consideration. The companys money was divered and was brought back as contribution by the promoters.
The professional misconduct attributed to the respondent is grave and serious in nature which affects public confidence, and their faith in the integrity and impartiality of the Chartered Accountants and the Institute of which they are members. A false certification by the respondent has enabled the promoters of the company to squander public money, on inducing the general public to subscribe to the share capital of the company. Taking a lenient view, or exonerating such professionals, would encourage others to indulge in similar acts, and completely erode the faith of the general public in the impartiality and integrity of the members of the Institute, and bring the Institute itself into disrepute.
The Council of the Institute has recommended removal of the name of the respondent from the Register of the Institute for a period of three (3) years i.e. suspending him from practicing as a Chartered Accountant for a period of three (3) years. The recommendation of the Institute, regarding the nature of the punishment, is not binding on this Court and, in exercise of the wide powers conferred on it by the Act, this Court can impose a different punishment.
Thus after anxious consideration of the matter, we find it appropriate that the respondent herein should be suspended from practising as a Chartered Accountant for a period of three years from 01.11.2016 to 31.10.2019.
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2016 (12) TMI 184 - GUJARAT HIGH COURT
Payment of dues of the Company under liquidation - preference to receive the dues - Held that:- The applicant can be paid his dues only on the basis of pari passu, i.e., amount which is paid to all similarly situated workers/employees of the Company under liquidation and no priority can be given to the applicant under the provisions of the Companies Act.
Considering the various reports which are filed by the Official Liquidator in the proceedings as well as in OLR No.16/15 by making payment of ₹ 53,266/-, the applicant is brought at par with the other regular workers/employees of the Company under liquidation. Under the provisions of the Act, the applicant for whatever reason, cannot be given priority over any other similarly situated workers/employees of the Company and his claim even if verified, can be satisfied only to the extent at par with the other workers and employees. Only because the applicant has approached this Court time and again would not entitle him to get any priority dehors the provisions of section 529A. The Official Liquidator has declared before this Court that claim of the applicant shall be considered as and when disbursement is done. It is a matter of fact that the Company in which the applicant was working has been wound up by an order of this Court and still the winding up proceedings are pending and the disposal of the properties of the Company in liquidation is still to take place. In light of such facts, this Court has passed the order dated 08.06.2016 as per the provisions of the Act. The applicant would be entitled to any further amount of his claim as and when some amount is available for disbursement at the hands of the Official Liquidator and the case of the applicant shall be considered for disbursement of any further amount at par with the other similarly situated workers/employees.
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2016 (12) TMI 124 - MADRAS HIGH COURT
Indian Made Foreign liquor - contraband item - seizure - the prosecution had failed to establish the ownership of the building by A2 and there was no scientific evidence to establish that the seized item are Indian Made Foreign liquor, an intoxicating item. Thus, the learned Magistrate acquitted them - whether the prosecution has established offences under Sections 31 (a) and 33 of the Pondicherry Excise (Amendment Act), 1989 as against A1 beyond all reasonable doubts - Whether the finding of the trial Court, suffers from any legal perversity?
Held that: - close reading of Sections 31 (a) and 33 of Pondicherry Excise (Amendment Act), 1989 shows that the offences prescribed therein requires certain basic elements viz., the person should be in possession, transportation etc., of an intoxicating item, without any authority, licence, order of the Pondicherry Government. Thus, only on establishing all these elements, the offences stated above would be made out.
In this case, P.W.1 has been examined to speak about seizure of the contraband. P.W.'s 2 and 3 are seizure Mahazar witnesses. They have not supported the prosecution. P.W.6, admitted in the cross examination that no record has been seized to establish that the premises in question belongs to the accused. On the contrary, the defense side contended that it belongs to one Achutan and to probabilise their defence, the accused also examined then Municipal Commissioner as D.W.1. In such circumstances, the trial Court has rightly concluded that the prosecution had failed to prove that the premises belong to the accused - One of the main ingredient of Sections 31 (a) and 33 of Pondicherry Excise (Amendment Act), 1989 is that the prosecution should establish that the contraband seized is an intoxicating item.
P.W.6 admits that the seized liquor bottles were not sent to clinical lab. However, an attempt has been made by the prosecution stating that the analysis report is available but not marked, which is not satisfactory - In the light of the above, the trial Court has rightly held that the prosecution has not established its case beyond all reasonable doubts - appeal dismissed.
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2016 (12) TMI 61 - GUJARAT HIGH COURT
Proceedings under SERFAESI Act - prayer to set aside the notices - Held that:- It is quite clear that the District Magistrate, upon an application being filed by the respondent Bank under Section 14 of the SERFAESI Act, has only issued a notice/summons to the petitioners to remain present on 07th November, 2016 and answer the case. It is this notice which is challenged by the petitioners and it is at this stage that the petitioners have filed this petition. It appears that the petitioners sent letter to the Bank on 14th November, 2016 and requested not to proceed with the hearing. The District Magistrate kept the next date to 21st November, 2016. In the meantime, on 17th November, 2016, the present petition came to be filed. It is entirely incomprehensible as to what was the justification on part of the petitioners not to respond to the notices, but straightway to rush to file the present petition.
Thus there was no occasion to invoke the jurisdiction of the writ court at the stage and in the circumstances obtained. The self-convenient act of on part of the petitioners to file present petition seeking to invoke the writ powers of the Court are indeed not well conceived in law and partakes an abuse of process of law, warranting a strict view.
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2016 (12) TMI 1 - SUPREME COURT
Conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - nature of offence - Held that:- An appraisal of the testimony of the prosecution witnesses and in particular of PW-4 ASI/Satnam Singh and PW-5 HC/Darbara Singh, the seizure witnesses, fully substantiate the recovery of the contraband i.e. Poppy Husk from the conscious possession of the accused persons. That the samples were properly sampled, sealed and forwarded to the Forensic Science Laboratory through Malkhana also stands established. The certificate of the Chemical Examiner, FSL to the effect that the seal of the samples was found intact and that the same tallied with the specimen seals also rules out the possibility of any tampering therewith. The fact that the contraband was recovered from the car while the same was being driven by one of the accused persons in the company of the other also authenticate the charge of their conscious possession thereof. The haul of six bags of Poppy Husk is substantial so much so that it negates even the remote possibility of the same being planted by the police. Furthermore no evidence with regard to bias or malice against the Investigating Agency has been adduced.
In the wake of the above, we are of the unhesitant opinion in the face of the evidence on record, that the prosecution has been able to prove the charge against the accused persons beyond all reasonable doubt. The Courts below have appreciated the materials on record in the correct legal and factual perspectives and the findings recorded do not merit any interference. The appeal is thus dismissed. The Trial Court is hereby directed to take immediate follow up the steps so as to ensure that the sentence awarded is served out by the accused persons.
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2016 (11) TMI 1755 - SUPREME COURT
Murder - Reversal of acquittal - Manipulated FIR - Ante-timing of the FIR and delayed dispatch of the FIR to the court of the Magistrate - reliability on eye-witnesses - HELD THAT:- The present is the case, where recording of the FIR on 16th June, 2000 itself has been proved, accepted by the trial court also, thus mere dispatch of the FIR on 22nd June, 2000 from the police station to the Magistrates' Court has no bearing on the basis of which any adverse presumption can be drawn. From the above discussion, it is clear that the FIR was genuine FIR and trial court committed an error in drawing adverse inference against the prosecution and refusing to attach value to the FIR - The conclusion of the learned Sessions Judge that the FIR was manipulated is thus found to be erroneous. FIR has been proved by the evidence. Thus, one of the basis of the decision of the Sessions Judge for discarding the prosecution case is knocked out.
The mere fact that the witness did not name the person whom he tried to catch does not lead to any contradiction since all eye-witness have stated that four persons came by 2 bicycles one of whom shoot Debol Ghosh.
PW 2 stated that he tried to catch one person of the aforesaid and omission not to name the person does not lead to any contradiction nor can result in discarding the evidence. The observation of learned Sessions Judge that the evidence suffers from the improbability and cannot be relied is also not based on any valid reason.
High Court was conscious that the case where acquittal has been made, while entertaining an appeal over an order of acquittal if two views are possible on making proper appreciation of available evidence the view going in favour of accused have to given importance. It is well settled that in case where an order of acquittal has been made on improper and erroneous appreciation of evidence, it is always open to the court of appeal to make proper and reasonable appreciation evidence and differ from the order of acquittal and in such event, it shall never hesitate in reversing the same.
The findings and conclusion recorded by the High Court are based on the correct appreciation of evidence and do not suffer from any error. The judgment of the High Court reversing the acquittal recorded by learned Sessions Judge needs no interference. There are no merits in this appeal. The appeal is dismissed.
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2016 (11) TMI 1753 - ALLAHABAD HIGH COURT
Authenticity of the sale deed - entitlement to compensation - Burden of Proof vs. Onus of Proof - Forgery and Fictitious Documents - the court dismissed the suit and ruled in favor of the defendant-respondents for compensation of the disputed land - Section 6(e) of Transfer of Property Act, 1882.
The plaintiffs argued the sale deed was void and forged, while the defendants claimed it transferred their right to compensation.
Whether sale deed transfers disputed land to the purchasers or only right to receive compensation was transferred? - HELD THAT:- Once it is said that the vendors have collected entire compensation of disputed land, this factum that such compensation may have been enhanced in litigation after that was transferred, in our view, will bring the deed in question as transferring "a mere right to sue" and would be hit by Section 6 (e) of Act 1882 - The stipulation contemplates a chance of higher compensation in litigation and intends to transfer the same. This is evidently a mere 'right to sue' and not any interest in the disputed land - the question is answered against defendant-respondents and in favour of appellants.
Whether Sale-deed dated 8.2.1994 is a forged and fictitious document, as claimed by plaintiff-appellants or Court below has rightly held it a genuine document? - HELD THAT:- When a document is registered in the office of Sub-Registrar, thumb impressions and signatures are obtained by Sub-Registrar on its own Register also. Defendant-respondents made no effort to get appropriate record summoned from the office of Sub-Registrar, particularly when document was challenged forged and fictitious, obtained by impersonation. It was also not signed by one of two witnesses as well as author - Court below has erred in law, firstly by stretching burden of proof of the factum of fraud and misrepresentation of aforesaid document on plaintiff-appellants on the ground that no witnesses of document were examined as plaintiffs' witnesses. plaintiff-appellants when challenged document as a forged and fictitious one, they never admitted that any person was accepted by them as a witness to such document. Hence, question of producing such witnesses by plaintiffs could not have arisen. Benefit of document was claimed by defendant-respondents. Hence onus to produce witnesses to prove document lay upon them. There is a distinction between "burden of proof" and 'onus' - question answered in favor of appellants.
Whether Court below has rightly held that defendant-respondent are entitled to payment of compensation of disputed land? - HELD THAT:- There is neither any evidence on record nor otherwise, from which it can safely be inferred that there was any interest or right to receive compensation available on 8.2.1994 which could have been transferred by plaintiff-appellants to defendant-respondents. Moreover when they themselves claimed compensation @ Rs. 400/- per square yard, would have agreed to give up such contest on meager consideration of Rs. 60,000/- is highly improbable unless there is some reason - the question is answered against defendant-respondents.
The judgement and decree, dated 16.9.1998 and 29.9.1998 respectively, passed by Sri Devendra Kumar Jain, XIIth Additional District Judge, Ghaziabad in Original Suit N. 47 of 1996 read with Land Acquisition Reference under Section 30 of Act, 1894 are hereby set side - appeal allowed.
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2016 (11) TMI 1749 - SUPREME COURT
Validity of order of punishment of compulsory retirement - Rule 14 of CCS (CCA) Rules, 1965 - Seeking grant of medical leave with permission to leave the station - principles of natural justice - HELD THAT:- Both the learned Single Judge and the Division Bench have heavily relied on the fact that before forwarding the copy of the report by letter dated 02.04.2008 the Disciplinary Authority-cum-Whole Time Members have already formed an opinion on 25.02.2008 to punish the writ Petitioner with major penalty which is a clear violation of principle of natural justice.
Before making opinion with regard to punishment which is to be imposed on a delinquent, the delinquent has to be given an opportunity to submit the representation/reply on the inquiry report which finds a charge proved against the delinquent. The opinion formed by the Disciplinary Authority-cum-Whole Time Members on 25.02.2008 was formed without there being benefit of comments of the writ Petitioner on the inquiry report. The writ Petitioner in his representation to the inquiry report is entitled to point out any defect in the procedure, a defect of substantial nature in appreciation of evidence, any misleading of evidence both oral or documentary. In his representation any inputs and explanation given by the delinquent are also entitled to be considered by the Disciplinary Authority before it embarks with further proceedings as per statutory rules.
There was violation of principle of natural justice at the level of Disciplinary Authority when opinion was formed to punish the writ Petitioner with dismissal without forwarding the inquiry report to the delinquent and before obtaining his comments on the inquiry report - the order of the High Court setting aside the punishment order as well as the Appellate order has to be maintained.
Thus, present is the case where the High Court while quashing the punishment order as well as Appellate order ought to have permitted the Disciplinary Authority to have proceeded with the inquiry from the stage in which fault was noticed i.e. the Stage Under Rule 15 of Rules - sufficient time has elapsed during the pendency of the writ petition before learned Single Judge, Division Bench and before this Court, however, in view of the interim order passed by this Court dated 31.08.2015 no further steps have been taken regarding implementation of the order of the High Court. The ends of justice be served in disposing of this appeal by fixing a time frame for completing the proceeding from the stage of Rule 15.
Appeal allowed in part.
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2016 (11) TMI 1745 - MADRAS HIGH COURT
Suspension order - deemed suspension - respondent would submit that as a criminal case is pending against the petitioner, the suspension is a deemed suspension and therefore, that order cannot be challenged in this writ petition - HELD THAT:- In the case of AJAY KUMAR CHOUDHARY VERSUS UNION OF INDIA THROUGH ITS SECRETARY & ANR. [2015 (6) TMI 592 - SUPREME COURT], the Supreme Court has come down heavily on this type of provisions which allow the competent authorities to extend the period of suspension for indefinite periods after periodical reviews. In the said case, Ajay Kumar Choudhary, the appellant had initially been suspended by the Suspension Order dated 30.9.2011. This suspension was extended on 28.12.2011 for a further period of 180 days. Then, with effect from 26.6.2012 the suspension was extended for another period of 180 days. Thereafter, the third extension of his suspension was ordered on 21.12.2012, but for a period of 90 days. It came to be followed by the fourth suspension for yet another period of 90 days with effect from 22.3.2013. Thus, he continued to be under suspension continuously from 30.09.2011.
The order of suspension dated 11.09.2014 is hereby revoked and the respondent is directed to post the petitioner in any one of the non-sensitive posts. The respondent is also directed to conclude the enquiry within a period of four months from the date of receipt of a copy of this order. The enquiry shall proceed dehors the pendency of the criminal case.
Petition allowed.
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2016 (11) TMI 1740 - DELHI HIGH COURT
Appointment of Arbitrator - dispute between the petitioner and respondent no. 2 to the Arbitrator to be appointed by the Delhi International Arbitration Centre and consequent notice issued requiring the petitioner to suggest five names from the DSE panel of Arbitrators for being appointed as an Arbitrator - HELD THAT:- As decided in Steel Authority of India & Anr. Vs. Micro Small Facilitations Council [2010 (8) TMI 1100 - BOMBAY HIGH COURT] procedure for arbitration and conciliation is precisely the procedure under which all arbitration agreements are dealt with. It cannot be said that because Section 18 provides for a forum of arbitration an independent arbitration agreement entered into between the parties will cease to have effect. There is no question of an independent arbitration agreement ceasing to have any effect because the overriding clause only overrides things inconsistent therewith and there is no inconsistency between an arbitration conducted by the Council under Section 18 and arbitration conducted under an individual clause since both are governed by the provision of the Arbitration Act, 1996.
Issue notice. Notice is accepted by learned counsel appearing for respondent no. 1. Notice shall issue to respondent no. 2, returnable on 31.03.2017.
Till the next date of hearing, the operation of the order dated 16.06.2016 and the notice dated 07.10.2016 shall remain stayed.
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2016 (11) TMI 1738 - SUPREME COURT
Public Servant or not - Respondent who was appointed as licenced surveyor Under Section 18A of the Karnataka Land Revenue Act, 1964 - Prevention of Corruption Act, 1988 - difference of opinion expressed by the different Benches of the High Court and, therefore, the matter was referred to the larger Bench - Division Bench in [2011 (11) TMI 872 - KARNATAKA HIGH COURT] resolved the issue by holding that such a licenced surveyor would be treated as a 'public servant' as defined Under Section 2(c) of the Prevention of Corruption Act, 1988.
HELD THAT:- Such a licensed surveyor is to be treated as public servant. For this purpose, the view taken by the Division Bench is agreed upon. It is mentioned that different Single Judge Benches of the Karnataka High Court had conflicting views and, for this reason, the matter was referred to the Division Bench which has been answered, by the judgment [2011 (11) TMI 872 - KARNATAKA HIGH COURT] holding licensed surveyor to be a public servant Under Section 2(c) of the Prevention of Corruption Act. For this purpose, the High Court, after taking note of the provisions of Section 128 and 131 of the Act, came to the conclusion that these surveyors discharge statutory duty of preparing survey sketches. Such a function was earlier performed by the surveyors of the Survey Department appointed by the State Government. As these Government surveyors were over-burdened with the work, Karnataka Land Revenue Act was amended by inserting Section 18A therein and the work was assigned to these licensed surveyors. All the activities of the licensed surveyors relating to discharging of statutory duties are controlled by the Survey Department of the State Government.
This legal position is curled out from Rule 46-A to 46-K of the Karnataka Land Revenue Rules, read conjointly with Sections 18-A, 128 and 131 of the Act. The aforesaid facts and legal position unambiguously leads to the conclusion that these licensed surveyors are different from those private surveyors who have no license from the State Government. Once survey report is prepared by these persons, the same is duly acted upon, on the basis of which Government functionaries take further action. It is, thus, statutory work of preparing survey sketches which is bestowed upon these licensed surveyors and thus, they are performing statutory duty/public functions.
Obviously, in the duties that are to be discharged by these public surveyors, the State or the public has interest therein. It is more so, when these public surveyors are bound by the terms of their office as licensed surveyors, viz., the terms on which they are given license by the Government.
Appeal dismissed.
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2016 (11) TMI 1737 - SUPREME COURT
Direction to consider the candidature of the Respondent for selection and appointment as Teacher (Primary) in MCD Schools by giving him age relaxation upto 32 years - HELD THAT:- After rejecting the contentions on merits and upholding the validity of the Recruitment Rules, the Court went into the issue of hardship because of sudden reduction in the upper age limit and only on that ground one time relaxation was given to the Petitioners in the said petition. A direction was given to permit all those candidates who had completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination. Thus, this was one time relaxation given for the examination which was to be conducted in the year 2008, in order to ameliorate the hardship.
Once, we understand the contours and scope of the judgment and directions, it becomes abundantly clear that the said judgment of the High Court in the case of Sachin Gupta v. DSSSB and Ors. decided on 28.08.2008 cannot be made applicable for all times. The Respondent herein was not the candidate in the recruitment to the said post in the year 2008, On the contrary, he applied for the post pursuant to the advertisement published in the year 2009. In the impugned judgment the High Court has failed to consider the aforesaid analysis of its earlier judgment in Sachin Gupta's case.
Appeal allowed.
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2016 (11) TMI 1736 - ALLAHABAD HIGH COURT
Victim as contemplated by Section 2 (wa) of Indian Penal Code - Locus standi (the right or capacity to bring an action or to appear in a court/direct connection with the offence and only that person can file an application before court), to challenge the order - right to prefer appeal under the proviso of section 372 of Indian Penal Code - HELD THAT:- What we find from a reading of the judgments of various High Courts is that all the judgments deal with definition of 'victim' in respect of an offence of murder without considering the impact of the nature of an offence of which one is a victim. There are various forms of offences provided under Indian Penal Code as well as other Special Laws. An offence may be against body, mind, property, etc. In that context injury caused by the offence would vary. Further, there may be crime against society, which can be termed as a victim less crime because there is no victim in particular.
In the case of Subramanian Swamy Vs. Raju, [2013 (8) TMI 1174 - SUPREME COURT], the petitioner, in a public interest litigation had sought an authoritative pronouncement on the true purport and effect of different provisions of the JJ Act so as to take a juvenile out of the purview of the said Act. The High Court had declined to answer the question raised on the ground that the petitioner had an alternative remedy under the JJ Act against the order as may have been passed by the Board.
The inevitable conclusion is that remedy of appeal is a statutory remedy and powers of Appellate Court under Code of Criminal Procedure is an ordinary appellate power, which is regulated by the provisions meant for appeal against acquittal/conviction under Chapter XXIX (Section 372 to 394) of the Code.
Victim - HELD THAT:- The victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him/ her a right to prefer appeal under the proviso of section 372. In absence of the direct sufferer or in a case where the direct sufferer suffers a disability his or her legal heir or guardian would qualify as a victim.
Legal heir of actual Victim under Section 2 (wa) - HELD THAT:- The expression “Legal Heir” has to be understood in its ordinary or natural sense. That is if any person is able to establish his status as “heir” recognized by law, he can be termed as “Legal Heir” and the preferences / restrictions / categories provided under any statute / personal law governing succession/ inheritance will have no consequence. This interpretation of expression “Legal Heir” would not be a result of liberal construction but would be a consequence of ordinary or natural meaning of the expression “Legal Heir”.
Guardian of Actual Victim under Section 2 (wa) - HELD THAT:- The word “Guardian” includes a Judicial Guardian (appointed by law), a legal Guardian, a Natural Guardian.
The proviso of Section 372 is an exception to the general law and same confers on a victim a right to appeal against acquittal, which is subject to the grant of leave by the Court. The first part of the definition of 'victim' as given under Section 2 (wa) (i.e. “Victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged), is required to be construed in its literal sense and no liberal interpretation is required, Accordingly, only such person would be treated as ‘victim’, who is the subject-matter of trial being direct sufferer of crime in terms of loss or injury caused to his own body, mind, reputation and property and such loss or injury is one of the ingredient of the offence for which the accused person has been charged and, therefore, any other person cannot be accepted as victim within the first part of Section 2 (wa) for the purposes of maintaining appeal. The second part that is “includes his or her guardian and Legal Heir” would come into play when the actual sufferer is absent or suffers disability.
Thus, ictim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him /her right to prefer appeal under the proviso of section 372, though, in his or her absence or disability, his “legal heir” or “guardian” would qualify as victim and have a right to appeal. A person who claims himself to be 'guardian' or 'legal heir' of actual victim (direct sufferer), would be able to maintain appeal provided he establishes his claim as such before the court in his application by disclosing his particulars; relationship with the direct sufferer; and the grounds on which such claim of being “legal heir” or “guardian” is based.
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2016 (11) TMI 1733 - SUPREME COURT
Seeking an injunction against the First Respondent from selling, removing or dismantling any assets of the Kota units till the entire amount due to the workmen was determined and settled - BIFR held that the Second Respondent cannot escape responsibility towards the rehabilitation of the Kota unit on the ground that there is change in management - HELD THAT:- It is clear from a plain reading of Section 22 A of the Act that the Board can issue a direction not to dispose of assets only to a sick inACdustrial company. There is no dispute that the First Respondent is not a sick industrial company and that it purchased the assets from a sick industrial company in accordance with the Sanctioned Scheme. The BIFR was not correct in passing an order of status quo and directing the First Respondent not to alienate/transfer the assets by its orders dated 05.05.2008 and 30.06.2008.
Several contentions have been raised by both sides during the course of hearing of these Appeals which we have not adverted to as they are not relevant for adjudication of the dispute in these appeals. We express no opinion on the jurisdiction of BIFR under other provisions of the Act. It is open to the BIFR to review the implementation of the Sanctioned Scheme and pass suitable directions.
The AAIFR held that the Second Respondent has no liability in respect of Kota units which have been sold to the First Respondent. The said findings were not challenged by the First Respondent in the Writ Petition filed in the High Court. The High Court set aside the entire order dated 11.12.2008 without taking note of the findings in favour of the Second Respondent - Appeal dismissed.
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2016 (11) TMI 1731 - BOMBAY HIGH COURT
Grant of complete waiver of deposit under section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - default in payment of liabilities - HELD THAT:- The statements of object and reasons of the SARFAESI Act indicate that the financial sector, being one of the key drivers in India's efforts to achieve success in rapidly developing its economy, did not have a level playing field as compared to other participants in the financial markets of the world. There was no legal provision for facilitating securitisation of financial assets of banks and financial institutions, and unlike international banks, the banks and financial institutions in India did not have the power to take possession of securities and sell them. The Legislature felt that our existing legal framework had not kept pace with the changing commercial practices and financial sector reforms, which resulted in delays in recovery of defaulting loans. This in turn had the effect of mounting levels of non-performing assets of banks and financial institutions. In order to bring the Indian Banking Sector on par with International Standards, the Government set up two Narasimhan Committees and the Andhyarujina Committee for the purposes of examining banking sector reforms.
Section 18(1) clearly stipulates, any person aggrieved by any order made by the DRT under Section 17, may prefer an appeal to the DRAT within 30 days from the date of receipt of the order of the DRT. The 2nd proviso to Section 18(1) stipulates that no appeal shall be entertained by the DRAT unless the borrower has deposited with it 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the DRT, whichever is less. The 3rd proviso to Section 18(1) gives a discretion to the DRAT to reduce the aforesaid amount to not less than 25%, provided the DRAT gives reasons for the same which are to be recorded in writing. What becomes clear from the aforesaid provisions is that there is a jurisdictional bar from entertaining an appeal filed by the borrower from an order passed under Section 17, unless the borrower deposits 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the DRT, whichever is less - There is also a discretion granted to the DRAT to reduce this amount to 25% provided it finds adequate reasons for doing so and gives reasons, that are recorded in writing. If this deposit is not made, then the DRAT has no jurisdiction to entertain the appeal of the borrower.
There was non-compliance of Rules 6(2) and 8(6) of the SARFEASI Rules. It is true that the said rules [Rules 6(2) and 8(6)] are mandatory and ordinarily have to be complied with by the secured creditor before it proceeds to sell its secured assets. Rule 6(2) comes into play when the secured creditor seeks to sell movable property and Rule 8(6) comes into play when the borrower is selling immovable property.
The facts of this case clearly show that the 1st Respondent - borrower itself, to pay the dues of Respondent Nos. 2 to 5, had agreed to sell the subject properties. In fact, the 1st Respondent - borrower proposed that the subject properties would be sold to M/s. Shubham Developers for Rs. 7.47 crores and thereafter to Respondent No. 6 for Rs. 6.76 Crores. When these transactions did not fructify, Respondent Nos. 2 to 5 revoked the OTS sanctioned in favour of the 1st Respondent - borrower and thereafter proceeded to sell the subject properties under the provisions of the SARFAESI Act - This being the factual position, it is clear that the 1st Respondent - borrower had given up its right of redemption [as contemplated under Rules 6(2) and 8(6)] by itself offering to sell the subject properties to pay the dues of Respondent Nos. 2 to 5.
Application disposed off.
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2016 (11) TMI 1729 - CUTTACK HIGH COURT
Seeking grant of bail - Illegal execution of warrant of arrest or not - illegal detention in custody or not - whether petitioner and other police staff poured kerosene from a jerrycan upon the deceased persons or the deceased person has committed suicide? - HELD THAT:- It is revealed that statements of the inmates of the family accused the petitioner to have caused death of the deceased persons, whereas the outsiders eye witnesses including one of the accused in other case who was inside the jeep and accompanied police officials gave different version saying self immolation by the deceased persons to avoid arrest. It is also revealed that one of the witnesses stated to have recorded the dying declaration of Sk. Sabir where he has named the present petitioner, but the treating physician stated that the deceased having 95% burn injury has no ability to talk.
It appears that the Investigating Officer has maintained both the above statements while opposing bail, but had recorded to the effect that "accused persuaded his mission to execute the N.B.W. issued by the court as a result of which the deceased persons committed self immolation which was with the knowledge of persuasion of the accused for which prima facie case under section 304 Part-II of the Indian Penal Code is made out". When the Investigating Officer has come to conclusion about a case of self-immolation of the deceased persons as per the statements of the eye witnesses, prima facie case is yet to be made out against the present petitioner. Whether self-immolation is within the knowledge of the present petitioner or not can be decided at the time of trial. It is too early to opine on the merit of the case, but as per discussions made above and the opinion of the Investigating Officer, it is the considered opinion of this Court that prima facie case against the petitioner for the purpose of granting bail is yet to be formulated.
Regard being had to the facts and circumstances of the case as discussed, including the nature of allegation and punishment prescribed for the alleged offence, let the petitioner be released on bail on furnishing bail bond of Rs. 1,00,000/- with two solvent sureties each for the like amount to the satisfaction of the court in seisin over the matter subject to condition imposed - bail application disposed off.
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2016 (11) TMI 1715 - RAJASTHAN HIGH COURT
Dishonor of Cheque - seeking to recall the order - compromise subsequently entered between the parties - acquittal of the accused-petitioner for the offence under Section 138 of N.I. Act - HELD THAT:- On going through the material including the compromise entered into between the parties and the fact that the amount in dispute has been paid by the accused-petitioner to the respondent-complainant, it is found to be a fit case in the criminal misc. application is to be allowed and the order dated 6.10.2016 is to be recalled.
Application allowed.
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2016 (11) TMI 1712 - SUPREME COURT
Maintainability of appeal - Court has no jurisdiction to entertain and adjudicate the appeal and that the same is required to be filed before the Supreme Court in view of the provisions of Section 130E of the CA, 1962 - whether the present case falls within the ambit of Section 130 of the Act or not? - it was held by Gujarat High Court that the appeal squarely falls within the ambit of Section 130 of the Act and has, therefore, rightly been filed before this Court.
HELD THAT:- There are no reason to interfere with the impugned judgment and order passed by the High Court.
The High Court is at liberty to decide the issue on merits - SLP disposed off.
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