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Indian Laws - Case Laws
Showing 1 to 20 of 46 Records
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2012 (4) TMI 828
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... ... ..... serious one as the sentence of 7 years can be imposed. In the case under Negotiable Instruments Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under Indian Penal Code. In the case under Negotiable Instruments Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under Indian Penal Code. The case under Negotiable Instruments Act can only be initiated by filing a complaint. However, in a case under the Indian Penal Code such a condition is not necessary. 28. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. The appeal is devoid of any merit and accordingly dismissed.
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2012 (4) TMI 821
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... ... ..... the money has gone out of the public treasuries and reached the hands of any one of the persons involved. Hence, so far as the offences under Section 13(1)(c) and Section 13(1)(d) are concerned the place where the offences were committed could easily be identified as the place where the treasury concerned was situated. It is an undisputed fact that in all these cases the treasuries were situated within the territories of Jharkhand State. 7. It would be thus evident that in the present case, the misappropriation, embezzlement and the offence under Section 13 PC Act were committed in the State of Uttar Pradesh. The offence having been committed in the State of Uttar Pradesh, in terms of Section 4(2) of the PC Act, the Special Judge, Gaziabad at Uttar Pradesh is competent to try the same and the learned Special Judge, Delhi has committed no error in dismissing the application of the Petitioner for anticipatory bail for want of territorial jurisdiction. 8. Petition is dismissed.
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2012 (4) TMI 814
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... ... ..... r was to remain unaffected by the failure of borrower. It further provides that borrower and guarantor are jointly and severally liable under Section 128 of the Indian Contract Act. 10. Where the guarantee is a continuous one, acknowledgment of debt made by the principal debtor is binding on the guarantor. Therefore, considering the terms in the agreement of guarantee (Ex. P.9) in the light of Section 128 of the Act of 1872, in my considered opinion, the acknowledgment of debt by the borrowers will be binding upon the guarantor, as such, the suit is also not barred by limitation against respondent No. 6. 11. In the result, the appeal is allowed. The judgment and decree impugned is set aside. Instead, the appellant/plaintiff-Bank is granted a decree of Rs. 27,086.14 ps. along with interest @ 6% per annum from the date of suit on the principal sum adjudged till its recovery. Cost of the suit as well as the appeal shall be borne by the respondents. A decree be drawn accordingly.
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2012 (4) TMI 812
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... ... ..... e quite clear in this regard. The decision of the Calcutta High Court in Chowringhee Sales Bureau P. Ltd.’s case 1977 110 ITR 385 was not in the context of the applicability of section 43B of the Act. 6. In our opinion, since the assessee did not debit the amount to the profit and loss account as an expenditure nor did the assessee claim any deduction in respect of the amount and considering that the assessee is following the mercantile system of accounting, the question of disallowing the deduction not claimed would not arise. 7. Learned counsel for the Revenue submits that the assessee has sought to evade tax under the mercantile system of accounting. We are of the view that it is not for the Revenue authorities to tell the assessee how to maintain its accounts.” Therefore, following the above decisions, we decide the issue in favour of the assessee. 5. In the result, assessee’s appeal is allowed. Order pronounced in the open Court on this day of 4/4/2012.
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2012 (4) TMI 810
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... ... ..... the respondent/accused as regards her signatures on the cheque. Further, admittedly, the Magistrate had also compared the signature of the accused as appearing on the cheque with her admitted signatures as per his power under section 73 of the Evidence Act and did not find variation in the signatures. The plea regarding the cheques not bearing her signature was taken by the respondent/accused only at the stage of defence evidence. 11. It is also noted that this Court on 19.03.2011 had directed the MM to dispose of the case expeditiously and vide order dated 10.08.2011 a specific direction was given for disposal of the case within a period of 8 months. From the above discussion I am of the view that since there was no infirmity or illegality in the order of the MM dated 11.07.2011, the learned ASJ erred in entertaining the revision petition and setting aside the said order of the MM. In view of all this the impugned order is set aside. The petition is disposed of accordingly.
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2012 (4) TMI 808
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... ... ..... ption to answer the same, is for the reasons given hereinbefore, misplaced and mistaken. 24. The Trial Judge is the best Judge to decide the relevancy of the questions put up by the defense counsel during cross-examination of a witness and this Court cannot in its extraordinary powers under Article 226 or Article 227 of the Constitution or inherent powers under Section 482 Cr.P.C. interfere in exercise of such discretion by the Trial Judge unless the same was manifestly illegal or perverse or has resulted in miscarriage of justice. 25. In view of the above observations, I am satisfied that the order of the learned Special Judge does not suffer from any illegality or infirmity and I find no infirmity in the order of the Ld. Special Judge in disallowing certain questions put up by the petitioner's counsel during cross-examination of PW12. 26. Petition stands dismissed. A copy of this order, preferably soft copy, be circulated amongst all the Judges of subordinate judiciary.
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2012 (4) TMI 799
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... ... ..... and well aware of the issue of the dishonoured cheques which can be construed to show that they were responsible for the conduct of the business of the accused company at the relevant time. 17. As held in the case of Rajesh Agarwal v. State & Anr 171 (Supra)and Rallis India Ltd (Supra) , this court ought not to interfere at the summoning stage in a case under 138 of the Act. However, this court may interfere under its inherent powers under Section 482 CrPC, if there is any apparent gross irregularity in the order of the Ld. MM which has caused miscarriage of justice or has caused undue harassment to the person. This power is however used cautiously and sparingly. 18. In view of the above observations, the summoning order qua petitioner no. 1 is quashed. Petitioner no. 2 and 3 shall be at liberty to lead their defence evidence before the Ld. MM and raise all such contentions there. 19. With the above observations, the petition is party allowed and disposed of accordingly.
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2012 (4) TMI 797
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... ... ..... ry of accused in the absence of the Company as a party, there is no impediment to prosecute the accused in the absence of the Company. 22. The cheque-Ex. P1 has been issued in favour of the complainant by name Ranga Karkera. It is not in the name of either the proprietorship concern or a firm. The evidence reveals that the complainant is doing the business in his own capacity and though the records disclose that YFT is either a partnership firm or a proprietorship concern, as the cheque has been issued in the name of the complainant and it is admitted by the accused that the complainant is doing business in his personal capacity, Hence, I do not find any impediment to hold the complaint is maintainable. So, in view of the material facts and the law laid down, this Court is of the view that the conviction ordered by the Courts below and the sentence has to be upheld. In that view of the matter, I proceed to pass the following ORDER The revision petition is dismissed. No costs.
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2012 (4) TMI 794
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... ... ..... . That would mean that when a petition is filed under Article 226/227 of the Constitution of India, orders that may be passed therein may have much wider ramifications and reach whereof may not just be confined to territory of the State. When Rule 315(h) of the Rajasthan High Court Rules has required the criminal writ petitions to be registered separately, there is no reason that the writ petitions filed by the petitioner should not be registered as criminal writ petitions, particularly when Rule 375 refers to the civil writ petitions of the other kind presented before this Court. The Registry therefore on its own could not have registered these writ petition as criminal misc. petitions under Section 482 Cr.P.C. when the petitioner presented them as criminal writ petitions. The objection in this behalf raised by the registry is overruled. The registry is directed to register these petitions separately as S.B. Criminal Writ Petitions and list them before the appropriate bench.
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2012 (4) TMI 793
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... ... ..... clude, that a person who had preferred his evidence on affidavit, need not make an oral deposition in court, before the accused is summoned or is required to cross-examine him. This is not the issue in the present controversy. We are therefore satisfied, that the reliance placed by the Learned Counsel for the Petitioner on Mandvi Coop. Bank's case (supra) is wholly misconceived. 8. In view of the above, we are of the view, that the Petitioner has grossly abused the jurisdiction of this Court by approaching this Court under Article 32 of the Constitution of India. The instant writ petition being devoid of any merit is hereby dismissed. For the abuse of the process of this Court, the Petitioner is directed to deposit costs quantified at ₹ 20,000/- with the Supreme Court Legal Services Authority, within four weeks from the date of pronouncement of the instant order, failing which the matter be placed before the Court for appropriate direction for recovery of the costs.
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2012 (4) TMI 792
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... ... ..... Report dated 18th April, 2012, is accepted with a specific clarification that individual Reclamation and Rehabilitation report for each mining lease(s) would specify unbroken forest area. Mining which is to be resumed in appropriate cases falling in Category ‘A’, however, shall not extend to unbroken forest areas. Further, we direct Ministry of Environment and Forests to re-visit the statutory clearances earlier granted by it in the light of Reclamation and Rehabilitation Plan. Sale of iron ore lying at various cancelled stockyards is permitted through E-auction by Monitoring Committee with the condition that saleproceeds not found to be involved in any illegality will be reimbursed to the respective stockyards. Report of Central Empowered Committee dated 13th March, 2012, is accepted in respect of ML 2581 of M/s. SMIORE. Learned counsel appearing in I.A. Nos.47 and 48 submits that these interlocutory applications be dismissed as not pressed. We order accordingly.
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2012 (4) TMI 788
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... ... ..... er, there cannot be any conversion of the subject premises from leasehold to freehold and therefore substitution of the Lessees of commercial plots like the instant one, clearly attracts the imposition of unearned increase, in view of a Division Bench decision of this Court in Indian Shaving Products (Supra). The single bench decision in Kiran Kohli (Supra) relied upon by the petitioners is distinguishable on facts and is not applicable to the instant matter, as it does not deal with the Instructions (Annexure P-23), which squarely governs the dispute raised herein. 11. Logically speaking, Respondent’s right to levy unearned increase cannot be defeated by first effecting de-merger and then to further assign, transfer etc. without previous consent of the respondent/lessor. Consequentially, impugned demand (Annexure P-17) and the Notice (Annexure P-20) are held to be valid and this writ petition is dismissed with costs of ₹ 50,000/, while vacating the interim order.
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2012 (4) TMI 786
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... ... ..... ince right to file a suit or proceedings stood extinguished, the SARFAESI Act would not revive this extinguished claim. Position would have been different if the bank had filed mortgage suit and such a suit was pending. In Ivee Injectaa Ltd. (supra), mortgage suit has already been filed and therefore, claim for enforcing mortgage rights was subsisting as it was pending adjudication. If the period of 12 years had not expired under Article 62 in the Schedule to the Limitation Act and there was still time to file the proceedings of mortgage suit, even that would have saved the right of the Bank to enforce the provision of SARFAESI. But even that action has become time barred. In the facts of this case, we hold that the claim is barred under Section 36 of SARFAESI Act and therefore, it was not open to the bank to proceed under this Act. We, thus, allow this appeal and quash the impugned notice under Section 13(2) and 13(4) of SARFAESI Act issued by the bank. No order as to costs.
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2012 (4) TMI 785
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... ... ..... see and because of the Act of 2003, the petitioners' status has not changed to assessee from non-assessee. (VII) Section-5 of the Jharkhand Electricity Duty(Amendment)Act, 2011 amending Section 4 of the Act of 1948 is declared to be arbitrary as it gives power to the State Government to choose and pick up either of seller or consumer of the electricity for payment of electricity duty and Section 5 of the Act of 2011 amending Section 4 of the Act of 1948 is wholly unworkable and may create chaotic situation, made against the public interest, therefore, declared to be ultravires and illegal. 64. The petitioners are not liable to pay surcharge to the Damodar Valley corporation. Challenge to the rest of the provisions of the Act of 2011 is left open. The writ petitions are allowed accordingly, in terms of the points mentioned above. However, none of the petitioners, if has paid electricity duty to the State, shall be entitled to recover it from the State. No order as to cost.
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2012 (4) TMI 779
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... ... ..... other applicable condition/provisions. Any lease found to be operating in violation of the stipulated conditions/provisions should be liable for closure and/or termination of the lease; (H) the present Members of the Monitoring Committee should continue for a period of next two years; and (I) in the larger public interest the mining operations in the two leases of M/s NMDC may be permitted to be continued. However, it will be liable to deposit penalty/compensation as payable for the mining leases felling in "Category-B". The implementation of Reclamation and Rehabilitation Plans for all three categories shall start immediately. It is made clear that preparation, implementation and monitoring of Reclamation and Rehabilitation Plan will be under the supervision of Central Empowered Committee. 2. Central Empowered Committee shall inform this Court, next week, whether the suggestions with regard to stockyard and preparatory work for Category 'A' can be started.
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2012 (4) TMI 778
Petition for Sufficiency of Quantum of compensation - Motor Accident Claims Tribunal - the Motor Vehicles Act, 1988I (the Act) - the appellant’s husband died in a road accident when the Maruti car in which he was travelling with husband of respondent No. 2 and the father of respondent Nos. 3 and 4 went out of control. husband of respondent No. 2, who was driving the vehicle also suffered multiple injuries and died on the spot.
HELD THAT:- It is also not possible to approve the view taken by the Tribunal which has been reiterated by the High Court albeit without assigning reasons that the deceased would have spent 1/3rd of his total earning, i.e., ₹ 500/-, towards personal expenses. It seems that the Presiding Officer of the Tribunal and the learned Single Judge of the High Court were totally oblivious of the hard realities of the life. It will be impossible for a person whose monthly income is ₹ 1,500/- to spend 1/3rd on himself leaving 2/3rd for the family consisting of five persons. Ordinarily, such a person would, at best, spend 1/10th of his income on himself or use that amount as personal expenses and leave the rest for his family. The Tribunal’s observation that the two sons of the appellant cannot be treated dependant on their father because they were not minor is neither here nor there. In the cross-examination of the appellant, no question was put to her about the source of sustenance of her two sons. Therefore, there was no reason for the Tribunal to assume that the sons who had become major can no longer be regarded dependant on the deceased.
In the result, the appeal is allowed, the impugned judgment as also the award of the Tribunal are set aside and it is declared that the claimants shall be entitled to compensation of ₹ 2,94,840 [₹ 1,500 + 30% of ₹ 1,500 = ₹ 1,950 less 1/10th towards personal expenses = ₹ 1,755 x 12 x 14 =₹ 2,94,840]. The claimants shall also be entitled to ₹ 5,000/- for transportation of the body, ₹ 10,000/- as funeral expenses and ₹ 10,000/- in lieu of loss of consortium. Thus, the total amount payable to the claimants will be ₹ 3,19,840/-. The enhanced amount of compensation i.e. ₹ 1,42,340/- (₹ 3,19,840 - ₹ 1,77,500) shall carry interest of 7 per cent from the date of application till realisation.
Respondent No.1 – Insurance Company is directed to pay to the appellant the total amount of compensation within a period of three months by getting prepared a demand draft in her name which shall be delivered to her at the address given in the claim petition filed before the Tribunal. While doing so, respondent No.1 shall be free to deduct the amount already paid to the appellant.
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2012 (4) TMI 776
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... ... ..... re 'abated' at the end of that period. No application under Order XXII Rule 9 to set aside the abatement was filed. In any event, after the objections were rejected and the Award, with a slight modification as regards interest, was made rule of the court on 10th May 2010, the suit itself ceased. Even when the suit was pending, unless the abatement vis-a-vis GEC Inc was set aside, no application by its successor-in-interest GE Canada under Order XXII Rule 10 CPC could have been entertained. 40. Neither applicant has any explanation to offer for their abject failure, over several years, to bring to the notice of the Tribunal, and later the court, the fundamental changes in the constitution of the original parties to the contract. It is not possible to condone such a serious lapse and overlook the irreversible legal consequences that have resulted. For the aforesaid reasons, both applications are dismissed but, in the circumstances of the case, with no order as to costs.
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2012 (4) TMI 775
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... ... ..... ge recorded took time, what has to be seen is the time of filing of the rectification proceeding which is in the year 2005. If the plaintiffs had in the year 2005 asserted upon the registered trade mark, then as per the observations of the Division Bench in order to invoke Section 124, the defendant ought to have approached this Court first by applying for the prima-facie satisfaction, which defendant did not prefer before approaching IPAB. Accordingly, the defendant's rectification and circumstances therein are squarely covered within the ambit of judgment of Division Bench and learned Single Judge and are no different from the ones which the learned Single Judge and Division Bench was earlier concerned with. The other contentions raised by the learned counsel for the applicant are equally unmeritorious and the same are rejected. Resultantly, the application is dismissed with the cost of ₹ 5,000/-. CS(OS) No. 1421/2005 List before the Joint Registrar on 29.05.2012.
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2012 (4) TMI 770
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... ... ..... e entitled to disability pension. 10. This view stands fully fortified by the earlier judgment of this Court in Secretary, Ministry of Defence & Ors. v. Ajit Singh, (2009) 7 SCC 328. 11. The instant case is squarely covered by the ratio of the aforesaid judgment in Jujhar Singh (supra). We are of the view that the opinion of the Medical Board which is an expert body must be given due weight, value and credence. Person claiming disability pension must establish that the injury suffered by him bears a causal connection with military service. In the instant case, as the injury suffered by the respondent could not be attributable to or aggravated by the military service he is not entitled for disability pension. 12. In view of the above, the appeal is allowed. The judgment and order of the High Court dated 11.11.2009 passed in R.S.A. No. 499 of 2009 is set aside and the judgment and order of the Trial Court and that of First Appellate Court are restored. No order as to costs.
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2012 (4) TMI 759
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... ... ..... on from the Income Tax Department. The petitioner has brought on record the letter dated 5.9.2011 of the Housing Development Finance Corporation, by which respondent no. 5 was informed that the Corporation has received a letter dated 24.8.2011 from the Tax Recovery Officer, Government of India. The Corporation has written to respondent no. 5 to proceed with the cancellation of allotment of flat. We, by order of the date passed in Civil Misc. Writ Petition (Tax) No. 1767 of 2011 (Jitendra Kumar Shaw alias Aditya Kumar v. Union of India & others), have already quashed the notice issued by the Tax Recovery Officer including the subsequent notices, summons and all consequential action. The ends of justice will be served if the petitioner is permitted to submit a detailed representation before respondent no. 4, who may look into the grievance of the petitioner and shall take appropriate action in accordance with law. Order accordingly. The writ petition is disposed of finally.
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